Maxwell v. Grantham

Bobbitt, J.

In Andrews v. Andrews, 253 N.C. 139, 116 S.E. 2d 436, this Court construed this provision of the will of Mrs. Lizzie May Banks: “All the remainder of my real and personal properties goes to my daughter Annie May — at her death all property be divided equally among the grandchildren.” It was held that this provision vested in the daughter (Annie May) only a life estate in the real and personal property of the testatrix.

In Andrews, this Court, in opinion by Moore, J. said: “Where the gift to the first taker is in language sufficient, standing alone, to pass a fee simple estate, but no absolute power of disposition is expressed or necessarily implied, the gift is a life estate, provided from other clauses of the will it appears that ‘at the death’ of the first taker testator intends and directs a limitation over to another or others.”

Here, the gift to John T. Maxwell is in language sufficient, standing alone, to pass a fee simple and absolute estate, but he is given no power of disposition, expressed or necessarily implied. There is a limitation over to the children of John T. Maxwell; and it appears plainly that the testatrix intended that, at the death of John T. Maxwell, her property should go to John T. Maxwell’s children.

To ascertain the intent of the testatrix, the will must be construed as a whole; and, if possible, meaning must be given to each clause, phrase and word. Trust Co. v. Wolfe, 245 N.C. 535, 537, 96 S.E. 2d 690, and cases cited. To construe the provisions here considered as vesting the estate in John T. Maxwell in fee simple and absolutely, it would be necessary to ignore the final dispositive provision, to wit: “At the death of my nephew, John Maxwell the property is to be inherited by his children.”

Appellee contends the word “inherited” in said final dispositive provision "is a clear recognition that the fee is vested in John Maxwell, otherwise his children could not inherit from him.” But it is not provided that “the property” is to be inherited by the children from their father. In her will, the testatrix is disposing of her estate; and the clear implication is that the children of John T. Maxwell are to become the owners and entitled to the possession of her property upon the death of their father.

The said final provision, to effectuate the manifest intent of the testatrix, must be construed a dispositive provision of her will. It may not be reasonably considered a mere superfluous comment that if perchance John T. Maxwell, at his death, intestate, should own any part of the estate that passed to him under his aunt’s will, his children, under the law, would be entitled thereto as his heirs and distributees.

True, the word “inherit,” in its technical sense, connotes only the passing of real property by descent. Obviously, the testatrix used the words, “to be inherited,” in a general and nontechnical sense, that is, to manifest her intention that, at the death of John T. Maxwell, her property was to “go to” or “be received by” the children of John T. Maxwell. 43 C.J.S., p. 393; 21A Words and Phrases, Permanent Edition, pp. 21-23.

We perceive no substantial distinction between the provisions now considered and the provision construed in Andrews v. Andrews, supra. Appellee cites Taylor v. Taylor, 228 N.C. 275, 45 S.E. 2d 368, and decisions of like import. Since these were fully considered and distinguished in Andrews, further discussion thereof is unnecessary. (Note: Andrews was decided after the entry of Judge Hall’s judgment.)

Our conclusion is that John T. Maxwell, the plaintiff, takes only a life estate in the real and personal property that passed to him under Mrs. McIntosh’s will.

For the error indicated, the judgment is vacated; and the cause is remanded for judgment consistent with the law as stated herein.

Error and remanded.