| N.C. | Apr 18, 1917
S. A. Cecil died leaving two sons, C. A. Cecil, Yancey Cecil, and a daughter, Julia A. York, by the first wife; and three sons, Alpheus Cecil, Barna Cecil, and John A. Cecil, and two daughters, Leovina and Daisy Cecil by his second wife. He left the following will:
"In the Name of God Amen. June 25, '84.
This is my last will and testament. 1st, I will to C. A. Cecil the tract of land he lives on, 40 acres, more or less. Also to Yancey Cecil the tract of land he lives on, the line to run as I have mark, 40 acres, more or less; each farm is valued at $350 a peace; and also to Julia A. York and her heirs $300. Now, I will to my wife, Nancy Cecil, all my lands and horses, cattle, hogs and money (after my few debts is paid), as long as she remains my widow; after her death the Land to be divided between Alpheus Cecil, Barna Cecil, and John A. Cecil; each tract valued at $350. Leovina and Daisy Cecil to $350 a peace; the remainder equally divided among my eight children.
S. A. CECIL."
At the time the will was made the testator was the owner of about 200 acres of land in Davidson County, on which he lived, and also a (411) lot in High Point on Main Street with a two-story brick building on it, and about $1,200 of personal property, and he acquired after the date of the will a 7-acre tract. All the children were living at the date of the will and still living except Daisy, who has died since her father, leaving as heir at law one of the plaintiffs. The widow died after the testator.
The defendants Alpheus, Barna, and John A. Claim to own all the realty, including the town lot and the after-acquired 7-acre tract, except only the 40 acres each given in the will to C. A. and Yancey Cecil. This action is brought by the three children of the first marriage and the two daughters of the second marriage, claiming that each of the plaintiffs and defendants are tenants in common and owners of one-eighth interest *461 of the realty, after allotting to each of the three defendants in the home "land" "each (a) tract valued at $250," which the judge finds was in fact allotted to each of defendants during testator's life, two of whom built thereon and the other has occupied the residence and 40 acres attached thereto.
The court held with the plaintiffs and adjudged that the lot in High Point and the 7-acre tract did not pass to John A. Cecil, Barna Cecil, and A. D. Cecil, but belonged in the "remainder equally to be divided," and the defendants appealed. The main allegations of the complaint are admitted in the answer, and the only controverted facts arising upon the pleadings are the number of acres in the tract of land owned by the testator, and the value of the said tract and of the lots in High Point and the value of the personal property. These are not issues of fact but incidental questions of fact, properly found by the judge in construing the will, which is a matter of law for the court.
It was alleged in the complaint and admitted in the answer that prior to the date of the will the testator had marked off to Y. F. Cecil and C. A. Cecil each about 40 acres of the home place, and that each was living on the same at the time, and that he had previously given Julia A. York the sum of $50 at her marriage. The entire evidence shows that the home tract contained a little over 200 acres, and the valuation, taking the evidence of both sides, was about $1,750, being a tract of about $350 to each of the five sons. The personalty was about enough to give each of the daughters $350.
It appears from the fort corners of the will that the ruling intention therefore was equality of division among the eight children. The testator had given 40 acres of land to each of the two sons by the (412) first marriage and was giving the remainder of the home tract to the three sons by the second marriage (to whom, it is in evidence and is found by the judge, 40 acres each was marked off in the testator's lifetime and was occupied by each of defendants in severalty, two of whom have conveyed by metes and bounds, and the other has mortgaged his allotted tract since his death). This would give them slightly over 40 acres each, valued by him at $350. He had given Julia $50, and he adds in the will $300 in money, making her share $350. In the will he gives to the other two daughters $350 each, out of the personalty, which together *462 with the $300 to Julia about absorbed the personalty. He gave to his wife "all my lands, and horses, cattle, hogs and money (after my few debts is paid) as long as she remains my widow after her death, the land to be divided between Alpheus Cecil, Barna Cecil, and John A. Cecil, each tract valued at $350."
The whole controversy turns on the construction of the sentence in the will just quoted. We think the court properly held that the word "land" referred to the home tract, which he directed to be "divided between Alpheus, Barna, and John A. Cecil, each tract valued at $350," which would absorb that tract. This would be plain if he had inserted "a" so as to read "each a tract valued at $350," and we think that the word "Land," with a capital L, meant the hoe or farm tract. He gave to his wife "all my lands," but when he speaks of the division among the three defendants he used the word "Land" in the singular, and with a capital letter, showing that he referred to the home tract. He evidently omitted the "a," just as in the next line he omitted the word "have" before "$350 a peace" to his two daughters by the second wife. After making the above division of a $350 tract of land to each of his five sons and $350 in money to each of his three daughters, the intent of the will is made plain by the concluding sentence: "The remainder equally to be divided among my eight children." There would have been no remainder if the three defendants were to have the real estate in High Point and the seven acres subsequently acquired.
Upon the evidence the judge finds that the farm of 200 acres or more
was worth about ............................... $1,750 Lot in High Point, $1,000 to .................. 4,500 Personal property $1,000 to ................... 1,250 ------ Total $3,750 to ............................. $7,500
If the contention of the three defendants was right, they would get out of this $2,050 to $5,550, besides the 7-acre tract, while the other (413) five children, two of whom were also children of the last marriage, would get $350 each. This is contrary to the evident intention of the will, which is equality. Neither do we think it a fair construction that the word "land," which was to be divided between the three sons, who are defendants, was intended to embrace the valuable lot in the city, and that he would describe it as "each tract valued at $350." Lots in town are not called "tracts," and the context shows that the intention was to give, as the will expressed it, "to each of the three sons (a) tract valued at $350."
The defendants except to the judge's findings of facts, but all the findings are as to "questions of fact" in regard to the value of the different *463 tracts and incidental matters throwing light upon the intent of the testator and the construction of the will. The findings as to valuation are not conclusive in the division of the undevised property, which will probably be made by a sale and division of the proceeds. The other facts found are mostly matters alleged in the complaint and admitted in the answer. On the trial the defendants themselves objects to the submission of issues to a jury. The extraneous evidence was properly "admitted for placing the court at testator's point of view when he made the will and thereby aiding in the right interpretation of the will." Wooten v. Hobbs, 170 N. c., 214.
We conclude that the true intent of the will that Alpheus, Barna, and John A. Cecil, the defendants, were devised "each (a) tract of land valued at $350," being the balance of the home "land" not already marked off by the testator to the other two sons, and that after taking out the $300 in money devised to Julia and the $350 each to Leovina and Daisy, all the "remainder is to be equally divided among the eight children." Any other construction would be contrary to the palpable intent of the will, and would destroy the possibility of any "remainder," which the testator directed to be divided.
The decision below is
Affirmed.
Cited: Reynolds v. Trust Co.,