100 S.E.2d 45 | N.C. | 1957
Emma COFFIELD, Essie Coffield and husband, Charlie Coffield,
v.
Noah PEELE, and wife, Lizzie Peele, Mattie Ruffin, Edward S. Peele and wife, Farrow Peele, Lizzie Ruffin and husband, Roosevelt Ruffin, Roosevelt Peele and wife, Lou Emma Peele, Edward S. Peele, Executor of the Edward Peele Estate, Henry Peele and wife, Carrie Mae Peele, Viola Hudgins and husband, (Buck) Willie Hudgins, Juliana White and husband, Joseph White, Mamie Barnes and husband, Ernest Barnes, L. B. Peele and wife, Louvenia Peele, Percy Peele and wife, Isolene Peele, Henry Peele and wife, Louise Peele, Louise White and husband, Avine White, Maggie Taylor and husband, Shelby Taylor, Lealer Barclift and husband, Curtis Barclift, O'Neal Fields and husband, Roscoe Fields, Floyd Eugene Peele and wife, Lorainne Peele, Edward S. Peele, Jr., Howard Earl Peele, Elver Lois Peele, Lossie Mae Peele, Julius M. Peele, James S. Peele, Bernice (Bonnie) Peele, Learma Peele, Herbert Peele and wife, Vonzella Peele, Fannie Mae Smith and husband, Willie A. Smith, Roosevelt Ruffin, Jr., and wife, Blanche Ruffin, Martha Thompson and husband, Willie Thompson, Esther Ruffin, Ethel Ruffin, William Ruffin and wife, Margaret Ruffin, Vivian Lou Powell and husband, Paul Powell, Christopher Ruffin and wife, Mrs. Christopher Ruffin, Marie Ruffin, Jan Ruffin, John Ruffin, James Ruffin, Harold Ruffin, James Earl Peele and wife, Minnie Askew Peele, Wilbert Lee Peele, Robert Peele, Agnes Barfield, Nola Hayes Coffield, Clarence Coffield and wife, Retha Mae Coffield, Willie Beatrice Coffield, John D. Coffield, Essie V. Coffield, Alice Coffield, and H. O. Peele, Guardian ad litem.
Supreme Court of North Carolina.
*47 Charles H. Manning, Hugh M. Martin, Peel & Peel and Clarence W. Griffin, Williamston, for petitioners, appellees.
Critcher & Gurganus for Herbert O. Peele, Williamston, Guardian Ad Litem for minor respondents, appellants.
PARKER, Justice.
This appeal presents for decision the construction of Item 2 of the Will of Edward Peele.
Every will, in a sense, is unique. The same words, or those nearly similar, used under different circumstances and contexts may express different intentions, and for that reason decisions in previous cases are rarely helpful, except as they state the application of certain rules of construction, or certain broad canons of interpretation, which have become so thoroughly established by judicial pronouncement that they may be said to have passed into the definite law upon the subject. 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. Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298; Patterson *48 v. McCormick, 181 N.C. 311, 107 S.E. 12. Mr. Justice Holmes said in Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 159, 62 L.Ed. 372: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."
The first and great rule in the construction of wills is to ascertain the intent of the testator as expressed in the whole will, attributing due weight to all its words, and then to give effect to that intent, provided it be consistent with the rules of law, or not at variance with public policy. Such an instrument is the legal declaration of a man's intentions, which he wills to be performed after his death. Morris v. Morris, supra; Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578; Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888.
Apparently conflicting provisions should be reconciled, and effect given to all the words of the will, where possible. Morris v. Morris, supra; Wachovia Bank & Trust Co. v. Wolfe, supra; Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; Edens v. Williams' Ex'r, 7 N.C. 27. Denny, J., said for the Court in Coppedge v. Coppedge, supra [234 N.C. 173, 66 S.E.2d 779]: "But, where provisions are inconsistent, it is a general rule in the interpretation of wills, to recognize the general prevailing purpose of the testator and to subordinate the inconsistent provisions found in it."
Marshall, C. J., said on the same subject in Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322: "It is stated in many cases that where there are two intents inconsistent with each other, that which is primary will control that which is secondary."
The words in Item 2 of the Will "I give, devise and bequeath unto my seven children, namely: Noah Peele: Mattie Ruffin: Edward S. Peele: Essie Coffield: Lizzie Ruffin: Emma Coffield and Roosevelt PeeleAll of my real and personally (sic) property," standing alone, constitute a clear devise of the real property in fee simple to the testator's seven children. G.S. § 31-38; Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16; Elder v. Johnston, 227 N.C. 592, 42 S.E.2d 904; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626. Certainly, no parts of the will, nor any words of it, show that the testator intended to convey an estate of less dignity.
The testator after an unequivocal devise of his real property in fee simple to his seven named children, immediately thereafter used the words, "to be equally divided among the seven children of mine, and their children." The dispositive clause of the will is to testator's seven named children alone. The general expression for equal division among testator's children, and their children, contains no words like give, lend, devise, etc., and is not in as strong terms as the words giving the estate in fee simple to his children. The provisions are repugnant. If testator's seven children were devised his realty in fee simple, they own a one-seventh interest therein each. If testator's seven children, and their children, were devised his realty in fee simple, the share therein of his seven children is far less. The evidence shows that at the time of testator's death, his children had forty-four children living. If appellants' contention as to the construction of the Will were correct, Edward Peele's seven children own a one-fifty-first interest each in the real property, and their forty-four children, the grandchildren of Edward Peele, own a onefifty-first interest each in the realty, which would result in the grandchildren of the testator owning a much larger share than the children of the testator.
A man's widow and his children are the primary objects of his bounty. In re Crozer's Estate, 336 Pa. 266, 9 A.2d 535. In the absence of a manifest intention to the contrary, a will is to be construed in favor of beneficiaries appearing to be the natural *49 or special objects of the testator's bounty. Mangum v. Durham Loan & Trust Co., 195 N.C. 469, 142 S.E. 711; 95 C.J.S. Wills § 617, p. 845.
Considering Item 2 of Edward Peele's Will, and all the words thereof, it is our opinion that the primary intent of the testator is shown by his clear and decisive words devising his real property to his seven children alone, whose names are stated in the Will, and who are the natural objects of his bounty rather than his grandchildren, and that such primary intent controls the inconsistent provision for a division of his realty between his children, and their children.
We, therefore, agree with the Trial Court that under the Will of Edward Peele his seven named children took a fee simple to his real property as tenants in common in the proportion of one-seventh each.
No error.