109 S.E. 359 | N.C. | 1921
Submission of controversy without action.
The statement of the agreed facts is as follows:
"1. That J. T. Pilley was duly appointed as commissioner in a special proceeding in the Superior Court of Beaufort County, entitled, `J. T. Pilley and wife, Mattie E. Pilley, and Kathleen Lamm, by next friend, J. T. Pilley and Sidney Lamm, her husband, (495) ex parte,' and as such commissioner, duly authorized and empowered to convey to J. B. Sullivan the tract of land known as the A. S. Pilley land, containing 100 acres, more or less. The said proceeding being regular and sufficient to authorize conveyance of said land.
"2. That the said land was devised by Alfred S. Pilley by his will, dated August, 1913, and recorded in Beaufort County, in Book of Wills No. 4, at page 36, the material parts of which said will are as follows:
"`Third item. I give and devise to my daughter, Harriet Chauncey, twenty-five acres of land to be divided off from the west end of my home tract.
"`Fourth. I give and devise unto my son, John T. Pilley, and his wife, Mattie E. Pilley, a life estate in all my lands and tenements, with such privileges as may be necessary for their convenience *529 and comfort during their natural lives, except the twenty-five acres above devised to my daughter, Harriet Chauncey.
"`Fifth. I give and devise to my granddaughter, Kathleen Pilley, the above mentioned land whereon I live after the death of her father and mother, John T. and Mattie E. Pilley, all except the 25 acres above devised to my daughter Harriet.
"`It is my will and desire, and it is hereby stipulated that the devisees of my land herein named shall not sell or convey the said land, or any part thereof, to any individual or incorporative company, but the same shall descend by inheritance to their next of kin, and if either or both should die without heirs or intestate, then it shall be equally divided among all my children's heirs, share and share alike.'
"3. It is agreed that said John T. Pilley and wife, Mattie E. Pilley, are now living, and Kathleen Pilley has married one Sidney Lamm and now has one living child.
"4. That the special proceeding authorizing sale of said land required and directed that the proceeds therefrom should be invested in land in Greenville, N.C. the title of which should be held under the same terms and conditions as set out in said will; that the agreed consideration to be paid for the conveyance of said land by J. B. Sullivan was $1,000.
"5. That in the event that the court shall be of the opinion that the said John T. Pilley and wife, Mattie E. Pilley, and the said Kathleen (Pilley) Lamm took a fee-simple estate under the provisions of said will, then the plaintiff is entitled to recover of the defendant the agreed consideration of the said conveyance of $1,000 upon the delivery to the defendant of the deed making the conveyance of said land; but that if under the said will the estate of said parties is less than fee simple, it be subject to be defeated by conditions therein stated, then the plaintiff shall not recover anything; that cost shall be taxed against the losing party."
His Honor rendered judgment directing the plaintiff to deliver and the defendants to accept a deed to the land described. (496) The defendant excepted, and appealed.
The contention of the parties presents for determination the quantity of the estate embraced in items four and five of the last will and testament of Alfred S. Pilley. The clause which purports to ingraft upon the devise an unlimited restraint on *530
alienation is not only repugnant to the estate devised, but is in contravention of public policy, and therefore void. Latimer v. Waddell,
Lord Coke is credited with the observation that "Wills and the construction of them do more perplex a man than any other learning; and to make a certain construction of them, this excedit jurisprudentumartem." Nevertheless, the courts have established canons of construction, which are designed as guides to the discovery of the testator's intent, for the primary purpose in construing a will is to ascertain and give effect to the intention of the maker. Accordingly, the entire will should be considered; clauses apparently repugnant should be reconciled; and effect given wherever possible to every clause and to every word. One of the arbitrary canons of construction sometimes requires that the word "or" be construed as meaning "and." 28 R.C.L. 204 et seq.; Satterwaite v. Wilkinson,
The testator evidently did not intend that the limitation over should take effect in case Kathleen, although leaving heirs, should die intestate. It is equally manifest that the words "heirs" in the *531
expression referred to should be construed as meaning children. Franks v.Whitakers,
For the reasons given the judgment is
Reversed.
Cited: Snow v. Boylston,
(498)