Lambeth v. Fowler

CLARK, Judge.

The first issue upon appeal is whether plaintiff was required by the will to make an election.

An election is required only if the will discloses that it was the testator’s manifest purpose to put the beneficiary to an election. Bank v. Barbee, 260 N.C. 106, 131 S.E. 2d 666 (1963). “The doctrine of equitable election is in derogation of the property right of the true owner. Hence, the intention to put the beneficiary to án election must appear plainly from the terms of the will (citations omitted).” Burch v. Sutton, 266 N.C. 333, 335, 145 S.E. 2d 849, 851 (1966). The doctrine does not apply if the testator was under the mistaken belief that he owned the property of the beneficiary, which the testator devised or bequeathed to another. Breece v. Breece, 270 N.C. 605, 155 S.E. 2d 65 (1967). Nothing else appearing, factors which belie any intent to put a beneficiary to an election include a description of the property by the testator as “my property” and an absence of an express term requiring election. See Burch v. Sutton, supra; Bank v. Barbee, supra; Honeycutt v. Bank, 242 N.C. 734, 89 S.E. 2d 598 (1955). As counsel for plaintiff has pointed out in his well-written brief, in the present case testator referred to all twelve tracts of land as “my property” and his will contains no term requiring an election. In these circumstances we find no error in the judge’s conclusion that plaintiff was not required to make an election.

Because of our disposition of this issue, we need not reach the issue of whether plaintiff made an election by qualifying and acting as executrix.

The remaining issue is whether the exception of the farm machinery in Item Three applies to plaintiff’s life estate or only to the remainder. The cardinal principle in the construction of a will is to give effect, within the limits of the law, to the intent of the testator as it appears from the language used in the entire instrument. Olive v. Biggs, 276 N.C. 445, 173 S.E. 2d 301 (1970). In Item Two testator devised to his wife a life estate in all the real property he thought he owned. This manifests an understandable concern for the security and well-being of his surviving spouse. It is reasonable to infer that this samé concern encompassed all of testator’s personal property and did not exclude the farm machinery. Moreover, the trial court’s interpretation runs contrary to the grammatical sense of the sentence, since it would transpose an exception placed at the end of the clause creating the remainder back to the earlier clause creating the life estate. The court may transpose phrases or clauses when the context manifestly so. requires in order to ascertain and effect the intent of the testator. Entwistle v. Covington, 250 N.C. 315, 108 S.E. 2d 603 (1959). However, this will not be done where the context does not require. Jernigan v. Lee, 279 N.C. 341, 182 S.E. 2d 351 (1971). The rule that a will must be construed from its four corners or contextually does not require courts to give a strained construction contrary to the grammatical sense of the word's. Ward v. Black, 229 N.C. 221, 49 S.E. 2d 413 (1948). To deprive this plaintiff of a life estate in the farm machinery would be contrary to the grammatical sense of the sentence as well as to the intention and primary, concern of the testator. We conclude that plaintiff is entitled to a life estate in the farm machinery, and the judgment' is so modified.

As modified the judgment is

Affirmed.

Judges Morris and Parker concur.