Judges： Consideration, Denny, Johnson, Took, Valentine
Filed Date： 9/26/1951
Status： Precedential
Modified Date： 10/18/2024
The intent of the testator is the polar star that must guide the courts in the interpretation of a will. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E. 2d 625; Elmore v. Austin, 232 N.C. 13, 59 S.E. 2d 205; Cannon v. Cannon, 225 N.C. 611, 36 S.E. 2d 17; Holland v. Smith, 224 N.C. 255, 29 S.E. 2d 888. This intent is to be gathered from a consideration of the will from its four corners, and such intent should be given effect unless contrary to some rule of law or at variance with public policy. House v. House, 231 N.C. 218, 56 S.E. 2d 695; Williams v. Rand, 223 N.C. 734, 28 S.E. 2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.
It is permissible, in order to effectuate or ascertain a testator’s intention, for the Court to transpose words, phrases, or clauses. Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff, 195
Likewise, to effectuate tbe intention of tbe testator, tbe Court may disregard, or supply, punctuation. Williams v. Rand, supra; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Bunn v. Wells, 94 N.C. 67; Stoddart v. Golden, 3 A.L.R. 1060, 178 Pac. 707. Even words, phrases, or clauses will be supplied in tbe construction of a will wben tbe sense of tbe phrases, or clauses, in question, as collected from tbe context, manifestly requires it. Williams v. Rand, supra, Washburn v. Biggerstaff, supra; Gordon v. Ehringhaus, supra; Crouse v. Barham, supra; Howerton v. Henderson, 88 N.C. 597; Dew v. Barnes, 54 N.C. 149; Sessoms v. Sessoms, 22 N.C. 453.
Tbe only question involved in this appeal is whether the beneficiaries, under tbe residuary clause of tbe will of J. W. Coppedge, take per capita or per stirpes.
Our Court has experienced considerable difficulty in similar cases. In Stowe v. Ward, 10 N.C. 604, tbe language construed was as follows: “It is my will, and I do allow that all tbe remaining part of my estate, both real and personal, be equally divided amongst tbe heirs of my brother, John Ford, tbe heirs of my sister Nanny Stowe, tbe heirs of my sister Sally Ward, deceased, and nephew, Levi Ward.” Tbe Court was requested to pass upon tbe manner in which tbe personal property was to be distributed. It held that tbe word “heirs” was used in tbe sense of “children” and as a designation of persons, and directed a distribution of tbe property per capita. Later, tbe parties requested tbe Court to construe tbe same language with respect to tbe disposition of tbe real property, tbe opinion being reported in 12 N.C. 67. There tbe Court held tbe beneficiaries under tbe will took per stirpes and not per capita. Wben tbe second opinion was banded down, tbe personal property bad been distributed per capita, whereupon another action was instituted by Ward v. Stow, et als., 17 N.C. 509, to compel a redistribution of tbe personal property per stirpes. The Court held that tbe first opinion construing tbe will, to tbe effect that tbe beneficiaries thereunder took per capita, was correct and overruled Stow v. Ward, 12 N.C. 67.
In Bryant, Admr., v. Scott, 21 N.C. 155, tbe residue of tbe estate was “to be equally divided” among Edith Bryant, Margaret Parker, Julia Yalentine, and tbe children of bis daughter Temperance, and tbe children of a deceased son James. Tbe Court held tbe division to be per capita, and said: “Tbe intention that tbe grandchildren should take per stirpes is conjectured from tbe reasonableness of it, as applied to tbe state of most families. But wben tbe gift is made under circumstances which exclude all reference to tbe statute of distribution, that conjecture must be given
In the instant case, the testator directs that the residue of bis estate be divided among bis “legal beirs . . . equally, share and share alike as provided by the laws of North Carolina.”
We must determine whether the testator intended that upon ascertaining who his “legal heirs” are, as provided by the laws of North Carolina, such heirs should take per capita, — that is, equally, share and share alike; or, whether he intended that his “legal heirs” should take the residue of his estate in the proportions provided by law in the same manner as they would take had he died intestate. In the latter case, his heirs would not “share and share alike,” neither would they share “equally.”
In construing a will, the entire instrument should be considered; clauses apparently repugnant should be reconciled and effect given where possible to every clause or phrase and to every word. “Every part of a will is to be considered in its construction, and no words ought to be rejected if any meaning can possibly be put upon them. Every string should give its sound,” Edens v. Williams, 7 N.C. 27. Williams v. Rand, supra; Lee v. Lee, 216 N.C. 349, 4 S.E. 2d 880; Bell v. Thurston, 214 N.C. 231, 199 S.E. 93; Roberts v. Saunders, 192 N.C. 191, 134 S.E. 451. But, where provisions are inconsistent, it is a general rule in the interpretation of wills, to recognize the general prevailing purpose of the testator and to subordinate the inconsistent provisions found in it. Snow v. Boylston, 185 N.C. 321, 117 S.E. 14; Tucker v. Moye, 115 N.C. 71, 20 S.E. 186; Macon v. Macon, 75 N.C. 376; King v. Lynch, 74 N.C. 364; Lassiter v. Wood, 63 N.C. 360.
In 40 Cyc. 1464, the author says: “The word ‘heirs’ in a will, when applied to real estate, primarily means persons so related to one by blood that they would take the estate in case of intestacy; and when applied to personalty, primarily means next of kin or those persons who would take under the statute of distribution in case of intestacy, and this rule applies where the will directs realty to be sold and the proceeds paid to the heirs.” Everett v. Griffin, 174 N.C. 106, 93 S.E. 474.
One of the leading cases on the question before us is Freeman v. Knight, 37 N.C. 72, where the Court was called upon to interpret an item in Josiah Freeman’s will which read as follows: “It is also my will that Big Sam and Isaac should be sold and the proceeds equally divided between my legal heirs.” Gaston, J., in speaking for the Court said: “Where personal property is given simpliciter to ‘heirs,’ the statute of distributions is to be the guide, not only for ascertaining who succeeds and who are the ‘heirs,’ but how they succeed or in what proportions do they respectively take. But as donees claim, not under the statute, but under the will, if the will directs the manner and the proportions in which
, In the cases of Rogers v. Brickhouse, 58 N.C. 301, and Burgin v. Patton, 58 N.C. 425, the Court did not adhere to the decision in Freeman v. Knight, supra. However, the next time the question was presented to the Court for consideration, in Hackney v. Griffin, 59 N.C. 381, Chief Justice Pearson, speaking for the Court, said: “It is settled that the effect of the word ‘equal’ is to require the distribution to be made per capita; Freeman v. Knight, 37 N.C. 72, and, as stated in that case, whatever might be the thought of this distinction, were the matter now a new one, to disregard them at this day would be quieta movere.” And again in Tuttle v. Puitt, 68 N.C. 543, the Court speaking through Rod-man, J., said: “It is too firmly settled by authority to admit of a question, that where a testator directs his property, whether real or personal, to be equally divided among his heirs, the division must be per capita and not per stirpes.” Everett v. Griffin, supra; Wooten v. Outland, 226 N.C. 245, 37 S.E. 2d 682.
The general rule in this jurisdiction is to the effect that where an equal division is directed among heirs, or a class of beneficiaries, even though such class of beneficiaries may be described as heirs of deceased persons, heirs or children of living persons, the beneficiaries take per capita and not per stirpes. Stowe v. Ward, supra (10 N.C. 604); Byrant, Admr., v. Scott, supra; Freeman v. Knight, supra; Hill v. Spruill, supra; Hackney v. Griffin, supra; Tuttle v. Puitt, supra; Shull v. Johnson, 55 N.C. 202; Hastings v. Earp, 62 N.C. 5; Waller v. Forsythe, 62 N.C. 353; Britton v. Miller, 63 N.C. 268; Culp v. Lee, 109 N.C. 675, 14 S.E. 74; Leggett v. Simpson, 176 N.C. 3, 96 S.E. 638; Ex parte Brogden, 180 N.C. 157, 104 S.E. 177; Burton v. Cahill, 192 N.C. 505, 135 S.E. 332; Tillman v. O’Briant, 220 N.C. 714, 18 S.E. 2d 131.
The rule, however, will not control if the testator indicates the beneficiaries are to take by families or by classes as representatives of the deceased ancestor. Wooten v. Outland, supra, and cited eases.
In a bequest, or devise, as well as under the statute of distributions, or the canons of descent, where the beneficiaries take as representatives of an ancestor, they take per stirpes. In re Poindexter, 221 N.C. 246, 20 S.E. 2d 49, 140 A.L.R. 1138. But, when they take directly under a bequest, or devise, as individuals and not in a representative capacity, and the testator provides that the division or distribution shall be in equal proportions, they take per capita. Wooten v. Outland, supra.
This interpretation will give effect to every clause or phrase, and every word in tbe will. Or, to put it another way, every string will give its sound, Edens v. Williams, supra, and every note will be retained in tbe melody. To bold otherwise would require us to ignore tbe direction of tbe testator that tbe residue of bis estate is to be divided among bis “legal beirs, equally, share and share alike.” Tbe appellants are claiming under tbe will, and tbe division directed therein must be obeyed. Freeman v. Knight, supra.
Tbe argument of tbe appellees to tbe effect that to allow an equal distribution per capita will result in an unfair and unnatural distribution as between tbe brothers of tbe testator and other legatees, will not b'e permitted to disturb tbe express provisions in tbe will which point to a per capita distribution. Johnston v. Knight, 117 N.C. 122, 23 S.E. 92; Burton v. Cahill, supra.
Tbe judgment of tbe court below is
Eeversed.