Johnson v. Johnson

ARNOLD, Judge.

The intention of the testator as gathered from the four corners of his will controls the interpretation and construction of the will by the court. This cardinal principle of law has guided our courts since it was laid down in Blount v. Johnston, 5 N.C. 36 (1804). As so aptly stated by Chief Justice Stacy in the leading case of Richardson v. Cheek, 212 N.C. 510, 511, 193 S.E. 705, 706 (1937):

The guiding star in the interpretation of wills, to which all rules must bend unless contrary to some rule of law or public policy, is the intent of the testator, ... To find this is to solve the problem.

Justice Stacy also recognized that adjudicated cases lend little aid to the interpretation of the will before the court since no two testators are exactly alike, nor can any two wills be expected to express identical intentions. For this reason, the Chief Justice observed that every will, “ ‘must stand on its own bottom.’ ” Id. [Citations omitted.] We agree with the rule of law therein enunciated, if not with the metaphor employed. Moreover, in construing the will, it must be remembered that “substance rather than form” dictates the divination of the testator’s intent. 80 Am. Jur. 2d, Wills § 1127 at 237 (1975). To that end, and in order to clarify the content of the will, “the court will add, change, or disregard punctuation, phrases, and clauses.” 1 N. Wiggins, Wills and Administration of Estates in N. C. § 133 at 415 (1964). While it is not within our province to rewrite the will or to fill in blanks for the testator, Howell v. Gentry, 8 N.C. App. 145, 174 S.E. 2d 61 (1970), it is permissible “to transpose words, phrases, or clauses ... [or to] disregard, or supply, punctuation. . . .” Entwistle v. Covington, 250 N.C. 315, 319, 108 S.E. 2d 603, 606 (1959).

We think that the will before us, standing on its own, plainly manifests this testatrix’ intention regarding the disposition of her property. “The intention which controls is that which is manifest, expressly or impliedly, from the language of the will.” First Union National Bank v. Moss, 32 N.C. App. 499, 503, 233 S.E. 2d 88, 91, cert. denied, 292 N.C. 728, 235 S.E. 2d 783 (1977). There can be no doubt that she willed and bequeathed “all property both real & personal, belonging to me at my death, to —Edsel W. Johnson, Eddie Ray Johnson, Johnnie Lance Johnson,” and we agree with Judge Preston that, by placing a period at the end of that sentence, the intention of the testatrix as well as the whole substance of her disposition is made precise. Having devised all her property to these three nephews, she had nothing left to give to the defendant, whom Judge Preston correctly concluded “received nothing” under her will.

This construction of the will is bolstered by the wording of the clause wherein the defendant’s name is written. As Judge Preston found, the use of the singular language, “and Joe Ben Johnson is to receive,” clearly demonstrates testatrix’ intention to “sever” this individual from the group named in the completed sentence immediately preceding this incomplete clause. The inescapable impact of the separated clauses is this: Testatrix did not intend for Joe Ben Johnson to share equally in her estate with Edsel, Eddie Ray and Johnnie Lance Johnson. If she ever intended that he receive any part of her property, she never expressed that intent within the four corners of her will. In our opinion, a blank space with a question mark pencilled in above it indicates a contrary intention, i.e., Joe Ben Johnson “receives nothing.”

We hold that the trial judge properly construed the will of lia J. Barefoot. His judgment dated 30 April 1979 is affirmed.

Affirmed.

Judges WEBB and WELLS concur.