114 S.E. 849 | N.C. | 1922
STACY, J., dissenting; CLARK, C. J., concurring in the dissenting opinion. This is the appeal of the plaintiffs, J. C. Raines, Will Raines, Theodore Raines, R. C. Garrett, and E. R. Garrett, or of the plaintiffs other than H. Ewart Constant, from the judgment against them in the court below.
In the defendant's appeal we settled the meaning of the two items, Nos. 11 and 12, in the will of Mrs. Ricks, with reference to what was meant by the words "To any servant, or any other household employee," construing those words as if they read "To any household servant or any other household employee," and thus considered, it is our opinion that *600 none of the present appellants has brought himself within the meaning of those items. Mrs. Ricks, at the time of her death and for many years before that event, owned a very large tract of land, known as "Rickshaven," upon which she resided. There were about one hundred acres of this land in cultivation, where she raised wheat, corn, rye, potatoes, cabbages, and peas. She had a granary and barns, and an orchard from which she gathered and canned a large quantity of fruits.
The appellants lived on and cultivated for themselves separate small farms of the larger tract of land, and there is testimony tending to show that at least one if not more of them occasionally did work of various kinds in and about the house. As an illustration, we extract a clause from the testimony of Joe C. Raines, one of the appellants, as to the sort of work done by him: "I did just anything she wanted done, on the road and farm and buildings, and laid rock and brick and built flower boxes and worked on the yards building up places to sow grass, and I did carpenter work in the house and laid cement floors. There were about 100 acres of land in cultivation, and she raised wheat, corn, rye, potatoes, cabbage, peas, and she had quite an orchard and canned a good deal of fruit, for I helped with the sealing of the cans. I drove her car for her. H. E. Constant worked about the house mostly. My work was here and yonder, no certain place, but the last part of Mrs. Ricks' life most of my work was up about the house." But it was not household work either in the legal or popular sense of those words. He did no such work in or about the house as that performed by H. E. Constant, or as that contemplated or intended by the testatrix when she wrote the items Nos. 11 and 12. They were not in any proper sense household servants or household employees. They were farm laborers, or persons engaged in outside work, although they may occasionally have done work near or even in the house, and even those seem to have been rare instances. Carpenter's work, done in the house, or that of laying cement or laying rock, making flower boxes, and road or farm work, would never be supposed to mean housework, or the persons doing those things upon special request of Mrs. Ricks could never be properly or correctly considered as either household servants or household employees.
In determining the testator's intention, the court should place itself as near as possible in his position, and hence where the language of the will is ambiguous or doubtful, should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will was executed. 40 Cyc., p. 1392. This rule has been adopted in North Carolina. Bunting v. Harris,
Even if we could apply to this case the principle advanced and much relied upon by the appellants, as to the general or primary intention taking precedence of the particular or secondary one, for which they cite 40 Cyc., pp. 1393 and 1399, we would be unable to hold that the appellants were either "household servants or household employees."
The appellants do not answer the description of "household servants or household employees," who are those employed in the mansion house, and which words were certainly not intended to embrace those who worked out of doors upon the home place, and were not even regularly employed to do work within the curtilage.
The clause of the will under which the plaintiff claimed a legacy inFrazier v. Weld,
Murphy v. Lawrence,
We could hardly cite two cases of such high authority and entitled to so much respect where the facts are so nearly identical with those we are now considering, and we fully concur in the construction which the court placed upon those wills, and the principle there applied is controlling in this appeal.
Our decision on the question of evidence is also against the appellants, and is the same as that in Constant's appeal. "The general rule is that parol testimony is not competent to prove a testator's declarations prior to or after the execution of his will to aid in its construction, nor are such declarations admissible even if made at the time of the execution. Since the testator's intention is to be ascertained from his written will, his parol declarations of his understanding of the meaning of his will are not admissible for the purpose of interpreting his testament. It is obvious that if verbal declarations were admitted, wills might be overthrown which expressed the intention of one who could not dispute evidence of his declarations, nor give explanations of them, and thus grave evils would result." 28 Ruling Case Law, p. 280. "It seems to be generally held that the declarations of a testator are not competent upon the question of the interpretation of the contents of his will." In re Shelton,
There was no error, therefore, in the opinion and decision of Judge Bryson directing a judgment of nonsuit against the appellants.
No error.