Gatling v. Gatling

79 S.E.2d 466 (1954) 239 N.C. 215

GATLING
v.
GATLING et al.

No. 460.

Supreme Court of North Carolina.

January 15, 1954.

John W. Hinsdale, Howard E. Manning, Raleigh, and Frank S. Katzenbach, Princeton, N. J., for Louie Gatling White, Bart M. Gatling, Jr., James Moore Gatling, William C. Gatling, and Sarah Gatling Barbee, defendants, appellants.

Samuel R. Leager, Raleigh, for First-Citizens Bank & Trust Co., defendant, appellee.

Brassfield & Maupin, Allen Langston and I. Weisner Farmer, Raleigh, for plaintiff, appellee.

PARKER, Justice.

The appellants have two assignments of error. First: A general assignment of error as to the rendering and signing of the judgment. Second: They specifically assign as error the first sentence of the third conclusion of law in the judgment "that in the event it is necessary to sell real estate to make assets in the settlement of said estate, the 13 lots facing South on East Martin Street, as described in Item 5 of the will, and the remainder of the lands belonging to said estate and devised under Item 1 of said will, are specifically devised, subject to the debts, taxes and costs of administration of the estate, and stand on a parity for the purpose of the payment of such charges."

The appellants did not specifically except to the second sentence of the third conclusion of law reading: "In the event any part of said lands shall be sold to make assets, the devisee or devisees whose devise is thereby diminished will be entitled to such contribution from the other devisees as will effect an equality of contribution as among all of said devisees."

Although the appellants excepted generally to the signing of the entire judgment, the argument in their brief is addressed only to that part of the judgment that they specifically assign as error. Therefore, under Rule 28 of the Rules of Practice in this Court exceptions not discussed are deemed abandoned. This leaves intact the second sentence of the third conclusion of law set forth above. The appellants state in their brief: "No harm can come to anyone by the preservation of these 13 lots; they stand as a guarantee to the heirs not participating in them that they will receive equitable and just treatment. Much good may come from their preservation; Mr. Gatling thought so. No harm can come."

The brief of the appellee, First Citizens Bank and Trust Company, administrator of the estate of Lenora Crudup Gatling, deceased, hereafter called the Trust Co., makes these arguments. First: That Lenora Crudup Gatling under Item 1 of the will was given a life estate in all of testator's estate, including the 13 lots mentioned in Item 5 of the will, with power to encumber or sell such part of the estate, excepting the 13 lots described in Item 5, as may be necessary for her support. That Item 1 is the basic dispositive provision of the will, and means that what remains of the testator's estate at his wife's death is to be divided into seven equal shares for division between his six living children and one share for the issue of a child deceased. That Item 5 only modifies this basic disposition to this extent; if there is enough property to go around, then these 13 lots are to be included in the respective shares of the three children and two grandchildren named; if not, then the interest in these lots of the five individuals named in Item 5 would be reduced to the extent requisite to make an equal per stirpes distribution, or these five individuals would be required to contribute ratably to the other devisees to make an equal distribution. That it is erroneous to consider Item 5 as a specific devise and Item 1 as a residuary clause, and that all of the devisees under the will are on a parity and should bear ratably a diminution of real property caused by payment of debts, taxes and costs of administration. Second: Regardless of which land may be sold, the devisees of that land are entitled to equitable contribution from the other devisees.

The appellants contend in their brief: First: That Item 5 of the will is a specific devise of the 13 lots; that Item 1 is a general devise, and that if it is necessary to sell realty to pay debts of the estate and costs of the administration resort should first be had to realty of the testator other than that of the 13 lots set forth in Item 5. Second: If the devises in Items 1 and 5 of the will be considered of the same class, that Items 5 and 8 of the will should be given such controlling effect as to require resort to the sale of other lands to pay debts of the estate and costs of the administration before the specifically described 13 lots may be sold.

The epigram of Sir William Jones over 250 years ago "no will has a brother" has been often quoted by the courts. Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R. A.,N.S., 895; Meeker v. Draffen, 201 N.Y. 205, 94 N.E. 626, 33 L.R.A.,N.S., 816. Two wills rarely use exactly the same language. Every will is so much a thing of itself, and generally so unlike other wills, that it must be construed by itself as containing its own law, and upon considerations pertaining to its own peculiar terms. Probing the minds of persons long dead as to what they meant by words used when they walked this earth in the flesh is, at best, perilous labor. As said by Smith, C. J., in Brawley v. Collins, 88 N.C. 605 "it is seldom that we can derive aid from an examination of adjudicated cases."

However, the two following canons of construction have been universally established by the courts.

The cardinal principle to be sought in the interpretation of wills is to discover the intent of the testator, looking at the instrument from its four corners, and when that intent is ascertained, the mandate of the law is "thy will be done" unless contrary to some rule of law or at variance with public policy. Branch Banking & Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334; House v. House, 231 N.C. 218, 56 S.E.2d 695; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247.

To find out the meaning of particular parts the intention of the testator is to be gathered from the will as a whole. Where possible, effect should be given to every clause and phrase and to every word in accordance with the general purpose of the will. "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', Ex'r, 7 N.C. 27; Williams v. Rand, supra; Holland v. Smith, supra.

Reading the will in its entirety it clearly appears that the testator was proud of his distinguished ancestry, and loved his home with a deep and abiding affection. In Item 8 of his will he expresses the hope that some member of the family could keep and preserve the homeplace for quite a while, and says "the property has been in the family almost a hundred years; it would be a very happy thought if one of us would continue to own it; if all of you work in harmony it might be possible. May God bless all of you and Good-bye." It also plainly appears that it was the testator's intent and purpose to preserve the homeplace from adverse surroundings by endeavoring to keep the ownership of the 13 lots facing on E. Martin Street and specifically numbered in Item 5 of the will in members of his family, so long as the homeplace remained in the family.

To effectuate this purpose in Item 1 of his will he gives, devises and bequeaths all of his property, both real and personal, to his wife in trust for herself for life and after her death equally to his children and if any child or children be dead leaving any lawful issue then alive such issue shall take the share his, her, or their parent would have received if alive per stirpes. His wife was given power to encumber or sell such part thereof as necessary for her support. It would seem from reading the will as a whole that the devise to the children after the death of the life tenant should be regarded as general rather than specific, since we have a statute G.S. § 31-41 which states that every will shall be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. No such contrary intention appears in the instant will. 57 Am.Jur., Wills, p. 938; 88 A.L.R. Anno. p. 560.

However, in Item 5 of the will the testator directs that the 13 lots facing South on E. Martin Street and specifically numbered shall not be subject to the provision of Item 1 of the will during the life of his wife, but that in the final distribution or division of his lands these lots be allotted to Bart M. Gatling, Jr., James Moore Gatling, Louie Gatling White, Claude B. Barbee, 3rd., and Sarah Gatling Barbee and accounted for in the division. In this Item 5 the testator requests that they hold the same as a protection against any undesirable encroachments in close proximity to the home and if any of them need to sell their part of these lots they first offer the same to the member of the family owning the homeplace; but if the homeplace should pass out of the family this request is not to have any force.

The verb direct has as one of its meanings "to point out to with authority; to instruct as a superior or authoritatively; to order; as, he directed them to go; the judge directs the jury in matter of law." Webster's New International Dictionary, (2d Ed.).

Looking at the will from its four corners we construe the following words in Item 5 of the will "I direct that the 13 lots facing South on E. Martin Street and numbered 143, 144, 145, 146, 147, 148, 149, 177, 178, 179, 180, 181 and 182 shall not be subject to the provision of Item one of this will during the life of my wife, but that in the final distribution or division of my lands, they be allotted to Bart M. Gatling, Jr., James Moore Gatling, Louie Gatling White, Claude B. Barbee, 3rd., and Sarah Gatling Barbee and accounted for in the division" to be a positive, unqualified and mandatory direction that the widow of the testator was given no power to encumber or sell the 13 lots facing South on E. Martin Street for her support, and that in the final distribution or division of the testator's lands they be allotted to the devisees named in Item 5 of the will; that in such division these named devisees shall account to the other devisees so that there may be an equal division between the children of the testator and the lawful issue alive of a deceased child who shall take his, her or their parent's share, if alive, per stirpes, and that in the event it is necessary to sell real estate of the testator to make assets to pay debts, taxes and costs of administration resort must first be had to lands of the testator other that the 13 lots facing South on E. Martin Street, and specifically numbered in Item 5 of the will. In the following cases directions in a will were held to be imperative. Wachovia Bank & Trust Co. v. Allen, 232 N.C. 274, 60 S.E.2d 117; Seagle v. Harris, 214 N.C. 339, 199 S.E. 271.

We are further supported in our opinion as to the construction of the will by the words the testator used in Item 8 of his will. To adopt the construction contended for by the Trust Company we should have to ignore the imperative direction of Item 5 of the will, and be deaf to the sound this string gives. The language used by the testator is clear. His intent as expressed is controlling.

This cause is remanded for judgment in accordance with this opinion, and the judgment as thus modified is affirmed.

Modified and Affirmed.