50 S.E. 597 | N.C. | 1905
Lead Opinion
WALKER, J., did not sit in these appeals. PLAINTIFF'S APPEAL. (116) This was a petition for sale of land for partition The plaintiffs claimed an undivided interest in the locus in quo with defendant Ingold Newsome, as heirs at law of Tobias Kesler. Defendant Ingold Newsome claimed that she was sole seized for life, remainder to her children and other defendants, under the will of said Kesler. That defendant James H. Ramsey, trustee, was empowered under the provisions of the will to sell the land and invest the proceeds for the purpose of executing the trust declared therein. The cause having been transferred to the trial docket of the Superior Court, the *85 parties agreed that the judge should try and determine the controversy upon an agreed state of facts in a suit for the purpose of obtaining a construction of the will-waiving all questions of form or procedure.
The decision of the controversy is dependent upon the construction put upon the fifteenth item of the will, which is in the following words: "The balance and residue of my estate of every kind I give, bequeath, and devise to my daughter, Ingold Newsome, wife of A. H. Newsome, during her lifetime; said estate to be placed in the hands of my trustee hereinafter named and appointed for the uses and purposes as follows, to wit: Said trustee is to invest and keep invested said estate, and the interest or income accruing therefrom is to be by him paid to my said daughter, Ingold Newsome, for and during her natural life, and at her death said estate to be paid over by said trustee to her issue: Provided,however, that my said trustee shall not be chargeable with interest on any money or personal estate lying idle in his hands." It appeared that said Kesler held mortgages upon certain tracts of land described in the petition; that said mortgages were foreclosed and the lands purchased by the executor. As to such tracts, the plaintiffs do not except to the judgment of the court. The other tracts were owned by Kesler at the time of his death. The plaintiffs are his children and grandchildren, and defendant Ingold is his daughter — the other defendants, except Ramsey, trustee, being her children. His Honor was of opinion that by item 15 of the will a life estate was devised to the (117) defendant Ingold. That said land, together with the personalty, was to be under the control of the defendant Ramsey, trustee. That as to the remainder in fee after the termination of the life estate, the testator died intestate and the same descended to and vested in his heirs at law. That as there was objection to the partition during the continuance of the life estate, the prayer of the petition was refused. To this ruling the plaintiffs excepted and appealed, assigning as error in the judgment of the court "that the defendant Ingold Newsome is entitled to a life estate in all the lands described in the petition. That plaintiffs are not entitled to partition during the life of said Ingold."
We concur with his Honor in holding that item 15 of the will, being the residuary clause, includes the real as well as the personal property. "The word `estate,' taken in its primary sense, as used in a will, without anything in the context to limit it, is a word of very extensive meaning. It is nearly synonymous with the word `property' when that word is not qualified by the word `personal.' Under the word `estate' used in its primary sense, real property of every description will ordinarily pass, and the presumption is that the testator, in using the word, uses it in its broad and inclusive signification, unless the context restricts its meaning to some particular species of property." 1 Underhill on Wills, *86
295. In Clark v. Hyman,
The plaintiffs direct our attention to the whole will, and say that we will find there manifested an intention sustaining their contention. The will shows a carefully considered plan or scheme in the distribution and settlement of a large estate. The wife is the first provided for. Each child is given real and personal property with limitations and trusts attached thereto. The testator uniformly uses apt words, distinguishing gifts of real and personal property, such as "give and devise, " and "give and bequeath," respectively, whereas in the residuary clause he uses the terms "give, bequeath and devise," showing a recognization of the different kinds of property to pass. He carefully excludes one of his grandchildren by name from any participation in his estate. It is true that the terms "keep invested," "paid over," relate to handling and disposing of personalty. They also say that the testator uses the word "income" as synonymous with "interest" in every other clause in which a disposition of personalty is made. They further say that it is a well-settled rule of construction that the heir is favored and can be excluded only by express terms or necessary implication, citing many authorities from this and other courts. 2 Jarman on Wills, 112 ; Schouler on Wills, sec. 480; Holton v.Jones,
On the other hand, defendants' counsel urge on our attention the equally uniform rule that every testator is presumed to intend to dispose of all his estate, and not to die intestate as to any part. Pearson, J., in Boyd v. Latham,
We are, upon careful consideration, of the opinion that the testator did not intend to die intestate in respect to any portion of his (122) property; that there is nothing in the declaration of trust in *89 regard to the control of the property which plainly shows an intention to restrict the operation of the words "give, bequeath, and devise" as applied to "the balance and residue of my estate of every kind." To put any other construction upon the language used would give to the real estate, not specifically devised, a direction clearly inconsistent with his expressed wish, and destroy the general scheme or plan adopted for the disposition of his property.
Affirmed.
DEFENDANTS APPEAL.
Addendum
The defendants (children of Ingold Newsome) and J. H. Ramsey, trustee, except to so much of the judgment as holds that Tobias Kesler died intestate as to the reversion in the real estate given to Ingold Newsome for life. They insist that the language of item 15 of the will is sufficiently comprehensive to carry the fee subject to the life estate. The facts are set forth in the opinion disposing of the plaintiff's appeal. The same reasons, controlled by the same line of authorities which led us to the conclusion that a life estate passed to Mrs. Newsome, lead us to the same conclusion in regard to the fee. The words "balance and residue of my estate of every kind," we think, include the reversionary interest in the real estate in which a life estate had been carved out. The presumption that a testator intended not to die intestate in regard to any part of his estate is strengthened by the use of language so inclusive as that found in this item of the will. The same observation applies to a consideration of the entire will. He provides for each of his children, carefully excepting one of his grandchildren by name. We find nothing in the will or the condition of the estate or family, so far as we are informed by the record, to rebut the presumption, or cause us to think that he intended the reversion in the land undisposed of by specific devise of uncertain value, (123) by reason of the uncertain time at which the life estate will terminate, to be held until such time and divided among his heirs at law. We infer that Mrs. Newsome, at the time the will was executed, 29 September, 1894, was a young woman, as six of her children are now infants, only one being of full age. We also infer from the size of the several tracts of land described in the complaint, and the fact that they are not specifically devised, that they are of inconsiderable value. In view of these facts, casting light upon his purpose, as indicated by the language used, we conclude that his intention was in harmony with the presumption raised by the law. This view is sustained by the fact that he appoints a trustee to manage and control the property given to his daughter and children and derive an income therefrom. Page v. Atkins,
The judgment of the court below in respect to the disposition of the reversionary interest in the land described in the petition must be reversed. As all the parties in interest are before the court, we can see no reason why, if so advised, they may not take an order for the sale of the land by the trustee in this case. In this way the rights of all parties and security of title to the purchaser may be amply protected.
The Superior Court having acquired jurisdiction, may retain the cause and make all proper and necessary orders in the premises. (124) Let this be certified.
Reversed.
Cited: Harper v. Harper,