185 N.C. 563 | N.C. | 1923
Tbe presiding judge, we presume, based bis peremptory-instruction on tbe legal inference tbat tbe earlier paper-writing was revoked by tbe one of later date, for .it is not at all probable tbat it was bis purpose to withdraw from tbe jury any evidence tending to, show tbe erasure of tbe original signature to tbe older instrument; We are therefore called upon to decide whether tbe instruction given is a necessary deduction from tbe facts disclosed by tbe record.
A will may be revoked by a subsequent instrument executed solely for tbat purpose, or by a subsequent will containing a revoking clause or provisions inconsistent with those of tbe previous will, or by any of tbe other methods prescribed by law, but tbe mere fact tbat a second will was made, although it purports to be tbe last, does not create a presumption that it revokes or is inconsistent with one. of prior date. C. S., 4133 et seq.; Gardner on Wills, 266, 271; 1 Redfield on Wills, 350; 1 Jarman on Wills, 186 et seq.; In re Venable’s Will, 127 N. C., 345; Fleming v. Fleming, 63 N. C., 209.
Tbe propounder admits tbat tbe instrument dated 14 August (herein for convenience referred to as tbe second will) is a part of tbe maker’s testamentary disposition, but insists tbat it does not affect tbe validity of tbe instrument dated 31 July, herein designated as tbe first will. By reason of this admission, tbe appeal presents tbe single question whether tbe two wills are so inconsistent tbat they cannot stand together, and whether tbe first is revoked by tbe second.
It has often been held tbat in tbe construction of wills tbe primary purpose is to ascertain and give effect to tbe testator’s intention as expressed in tbe words employed, and if tbe language is free from ambiguity and doubt, and expresses plainly, clearly, and distinctly tbe maker’s intention, there is no occasion to resort to other means of interpretation. Black’s Inter-Laws, 37; Kearney v. Vann, 154 N. C., 315; Dicks v. Young, 181 N. C., 448; Pilley v. Sullivan, 182 N. C., 493; McIver v. McKinney, 184 N. C., 393; Ledbetter v. Culberson, 184 N. C., 488.
In the instant case, the language being clear and unequivocal, the chief controversy between the parties involves the meaning of the words “all my effects” as used in the second will. the propounder contends tbat they include only personal property; the respondents insist tbat the term embraces real as well as personal property, and tbat the second will revokes the first, the two being necessarily inconsistent.
The observation has been made tbat the individual cases construing “effects” are of value only for the purpose of illustration, each case being a law unto itself; but there seems to be a practical unanimity of judicial decision, with the exception of certain English cases, tbat the word “effects” used simyliciter or in a general or unlimited sense and
In the second will there are no words which ex vi termini import a disposition of real property; there is no residuary clause or clause of revocation; and in these circumstances, as the courts do not favor the revocation of wills by implication, there appears to be no sound reason for holding that the two instruments are so inconsistent as to be incapable of standing together, and that the first is necessarily revoked by the second. It is true there is a presumption that the testator intended to dispose of all his estate, and under our construction the testator died intestate as to the land not devised to Mary Lillie Luffman, but as said in Andrews v. Applegate, supra, such presumption, however strong, will not justify or warrant a construction incorporating in the second will any kind of property which cannot be brought within its terms.
Having admitted that the second will is a valid testamentary disposition of the property therein described, the propounder is entitled to have the jury determine whether the instrument dated 31 July, 1911, is any part of. the maker’s will. The judgment and verdict are therefore set aside and a new trial is awarded.
New trial.
