*1 v. BROWN STATE (1992)] [332 did, it insanity, that if by reason of but guilty guilty not not wreath, hang wreath big well take a you just “then will County in Halifax justice the courthouse door because on argument. to this latter objected dead.” Defendant that to a improper argue true that it is While it is other than the anything upon convict a defendant based it should trial, pres- argument at we find no such presented evidence if that say argument that the prosecutor’s ent case. We cannot County will “justice Halifax guilty, was found not defendant was a argument hyper- This improper argument. was an be dead[J” verdict, guilty that a not position of the State’s expression bolic injustice. Nor can the evidence of would be an light guilt, the prosecutor’s in the remainder of say anything we that there was the trial court should improper so grossly that was argument mero motu. This of error assignment intervened ex have overruled. of error. assignments six additional brings
Defendant forth However, previous- that this has candidly concedes Court decided, the issues raised adversely position, to defendant’s ly expressly of error and he has assignments the first three of these the reasons of error. For remaining assignments abandoned the three herein, in the trial. we find no error stated No error. v. JOHN BROWN
STATE OF NORTH CAROLINA No. 459PA91 (Filed 1992) September (NCI3d)— § 5 degree second Rape I. and Allied Offenses — force offense sufficient evidence of support evidence to a reasonable There was sufficient to sustain his required that defendant used the force finding 14-27.5(a)(l) sex- degree for second conviction under N.C.G.S. § evidence tended to show ual offense where State’s other; to each strangers victim were absolute defendant and his hospital the victim’s darkened defendant entered unbidden into IN THE SUPREME COURT *2 in the middle the there he found the female night; room suffering cystic tubing victim from fibrosis and attached to which she was administered in- through being antibiotics closed, travenously; eyes the victim’s were and defendant had conscious; pulled no reason to believe she was back bed, the pulled up gown, pulled bedclothes on the victim’s her hair; down her and his into her panties, put fingers pubic eyes, immediately the victim her and defendant opened pushed his finger vagina; slightly, into and when the victim moved door, immediately defendant went which he had closed room, after and made his The could entering escape. jury reasonably in pulling find that defendant’s actions back the the victim’s bedclothing, pulling up gown, pulling panties and aside amounted to actual “force” as that term is physical to in applied sexual offense cases. 2d, 4, 5, 7, 8, 63, §§
Am Jur Rape 90. (NCI3d)— § Rape degree 2. and Offenses second Allied sexual offense —threat of force —instructions
The trial court’s instructions on the element of force re- for a second offense did not quired degree permit sexual if it jury merely to convict found the victim suffered fear, fear, fright from or coercion but did not find that such fright or coercion was induced defendant’s actions where the trial court instructed that the could convict expressly jury theory defendant on the of a threat of force sufficient to over- come the victim’s will if the threat he made under all of the reasonably circumstances then would induce a fear existing bodily ordinary of serious harm in the mind of a person in firmness “and did fact create such a fear mind of victim.” the. 2d, §
Am Rape Jur 11. (NCI3d)— § 6 Rape degree 3. and Allied Offenses second vic- offense —threatened use of force —sufficient evidence of tim’s fear to convict permitting trial court’s instruction theory
defendant of second degree upon supported by of a threatened use of force was evidence that defendant’s actions fact created a fear the mind of to his commission of the sexual offense where prior reasonably the testimony could find from the victim’s victim, as a result of defendant’s presence her, room and his actions hospital toward was afraid that do,” defendant would hurt her and “didn’t know what to that her fear caused her to do nothing enabled defendant push finger into her vagina. 2d, §
Am Jur Rape 11. — (NCI4th) 4. Criminal Law identification of defendant— give pattern refusal instruction —harmless error Assuming arguendo that the trial court erred refusing request defendant’s give pattern jury instruction con- *3 cerning identification of defendant as the perpetrator of the charged, crime defendant failed to show that this error was prejudicial where the victim’s identification of defendant was times, absolutely at unequivocal all and the court’s instructions made it clear to the beyond must be satisfied a reasonable doubt that this committed the crime charged order to return a verdict of guilty. 2d,
Am Jur Appeal §§ 776 seq.; § Error et Trial 1257. — (NCI3d)— 5. Rape § and Allied 6.1 Offenses attempt instruction on not required The trial in prosecution court a degree for second sexual offense by did not err failing instruct on the lesser included offense of attempted second sexual degree offense where all that, of the evidence tended to show if defendant committed all, any crime at he committed the crime for which he was tried. 2d, 110; Am Rape § §§ Jur Trial 1427 et seq. Propriety of lesser-included-offense charge federal sex-crime prosecution. 100 ALR Fed 535.
Justice FRYE concurring.
discretionary
On
review of an unpublished decision of the. Court
309,
(1991),
Appeals,
104
App.
The defendant was tried at the 30 April Criminal Session Court, of Superior County, Pitt upon a bill of proper indictment for second-degree sexual offense. The jury having returned a ver- offense, finding dict the defendant guilty of sexual second-degree the trial court entered him judgment sentencing to imprisonment thirty-five for a term of years. The defendant appealed to the Appeals. Court of
In an unpublished opinion, the of Appeals Court concluded the State had not presented substantial evidence at trial establish the necessary element of force to sustain a conviction 14-27.5(a)(l) under N.C.G.S. for offense. As result, a the Court of Appeals judgment reversed the of the trial 1991, court. 21On October the Supreme Court allowed the State’s motion for temporary stay of the decision of the Court of Appeals. By Order dated December the Supreme Court allowed supersedeas, granted petition State’s for discretionary review of the decision of the Appeals, Court of and granted the defendant’s motion to bring additional issues discretionary forward for review. General, H.
Lacy Thornburg, Attorney D. Timothy Nifong, General, Assistant Attorney the State-appellant. for Hunter, Jr., Ray Defender, Malcolm Appellate Teresa A. Defender, McHugh, Appellate Assistant the defendant-appellee Brown. MITCHELL, Justice. *4 Court, discretionary
On review before this the argues State first that it met its proof burden of at trial as to all essential elements of the crime sexual offense. The Appeals Court of concluded that no substantial evidence was introduced at trial a support reasonable that the in the finding case used force the commission of the offense charged. For reason, that the Court of concluded that Appeals liberty was entitled to his and reversed the trial court’s judgment without the reaching defendant’s of error. remaining assignments follow, For reasons which we that Appeals conclude the Court of Therefore, in its erred conclusion and holding. the decision of the reversed, Court of Appeals must be and the of the judgment trial court must be reinstated.
The evidence introduced at trial tended to show that the vic- tim, female, an adult employed registered was as a nurse at Pitt fibrosis, County Hospital. cystic Memorial She had suffered from long THE SUPREME COURT IN seriously ill and was hereditary disease. She became pulmonary an County Hospital on at Pitt Memorial hospitalized as patient commenced, including was 1989. A course treatment December administration December During of antibiotics. the intravenous 1989, By was nauseated. coughing victim blood and up the was 1989, was she was better and feeling the of December evening the 11:30 she turned television p.m., watch television. About able to on in room. The bathroom nightlight A was her sleep. off and went in the left on. cracked and the bathroom was open, light door was a.m., victim 1:10 on December the approximately At that sufficiently her to become aware someone sleep aroused from tubing being her bracelet and the feeling feeling identification intravenously. her The victim used to administer antibiotics to eyes. and her The open person it was her nurse did not assumed began feeling down and the victim’s bedclothing then pulled assessing her nurse was her condi- abdomen. victim assumed is a routine pro- tion abdominal which conducting palpitation, patients experienced the condition of who have assessing cedure for and person pulled up nightgown nausea. The then victim’s thereafter, the victim Immediately opened her aside. pulled panties person fingers the first time when the his eyes placed The victim over standing hair. saw pubic the victim’s pushed finger vagina. her. The defendant then into moved, away toward began When she he walk from the bed and tell he was point At that the victim could not dressed door. said, “Sir, may you?” I help as a nurse. She sat The defend- up said, ma’m, “No, everything’s ant turned as he left the room and okay, sleep.” back to just go room, victim off the solution
When the man left her turned intravenously, to her being of antibiotics which was administered which were pole hanging, on the antibiotics picked up walking went the hall She saw the defendant into outside room. hall, him. The victim stop down the and she called for someone to nurse, Horsely, what had and described happened told her Mrs. Horsely recognized description her assailant. Nurse Horsely of her fit the man had seen gave assailant *5 Horsely, with the assistance hallway a few moments before. Nurse officer, lobby front of of a located the defendant in the police had Horsely him as the man she recognized the Nurse hospital. at the seen from direction of the victim’s room about coming the THE 267 IN SUPREME COURT 262 N.C. thereafter, Shortly victim victim had been assaulted. time the had as the man who assaulted identified the defendant hospital room. 14-27.5(a):
Under N.C.G.S. § degree in the A of a sexual offense second person guilty is with another person: if in a sexual act person engages (1) or the will of the other By against person; force and (2) defective, mentally or mentally incapacitated, Who is the act helpless, person performing
physically reasonably person know that the other knows or should defective, mentally mentally physical- or incapacitated, is ly helpless. (1986). 14-27.5(a) whether We consider nor decide neither
N.C.G.S. §
finding
that
support
this case would
reasonable
evidence
that
is
helpless”
was
as
term
used
the victim
“physically
14-27.5(a)(2),
statute,
charge
since the
the defend-
against
N.C.G.S. §
Instead,
theory.
that
jury
submitted to the
on
ant was not
on the
submitted
charge against
with the victim
theory
in a sexual act
engaged
14-27.5(a)(l),
her will in
by
against
violation N.C.G.S.
force
theory.
verdict based on that
guilty
and the
returned its
then,
is limited
issue
concerning
appeal,
this
on
inquiry
Our
support
evidence to
of whether there was substantial
question
required
used the force
finding
a reasonable
14-27.5(a)(l).
under
to sustain his conviction
N.C.G.S. §
person”
the will
the other
against
force and
phrase “[b]y
14-27.5(a)(l)
it
same
did
meaning
has the
as used in N.C.G.S. §
rape.
used to describe an element
at common law when was
(1981).
500,
534, 539,
Locklear,
284 S.E.2d
503
304
State v.
N.C.
uses force sufficient
if the defendant
That element
See, e.g., State
make.
might
resistance the
overcome
(1987)
46,
673,
34,
(quoting
352 S.E.2d
Etheridge,
v.
319 N.C.
470,
(1984));
Alston,
399, 409, 312
310 N.C.
S.E.2d
State v.
(1981);
323, 330,
483,
Jones,
State
283 S.E.2d
v.
304 N.C.
State
(1978).
732,
97,
728,
“The
245 S.E.2d
Bailey,
App.
v.
actual,
by
physical force
established either
force
requisite
fear,
or coercion.”
fright,
force in the form of
constructive
force
at
Brown said she sat and looked at away her. She and he and carried her pulled picked up she performed bedroom. He oral sex on testified try fight that she did not him off because she found she enjoyed stayed it. The two until and had together morning Brown did not night. intercourse several times THE
IN SUPREME COURT
STATE v. BROWN N.C. 262 incident immediately disclose the because she police said she embarrassed.
Alston, 403, 310 312 at N.C. at S.E.2d 473. Alston,
Based the of upon unique uncontroverted facts we testimony concluded that the victim’s that she acquiesced had due some “general to fear” of the defendant due to past tendencies violence not for was evidence that the defendant had used force or threats to overcome the will victim to the particular the resist of sexual alleged intercourse to have been rape-, we also concluded evidence, that absent such the defendant’s could conviction not 409, cases, Id. 312 stand. at 476. In S.E.2d at more recent we clearly have stated that the fear” of Alston “general reasoning only should be to applied peculiar situations like the factual situa- 47, presented Etheridge, tion in that case. 319 352 N.C. at S.E.2d 681; Strickland, 653, 656, 281, at State v. 318 N.C. 351 S.E.2d (1987). clearly 283 This is not such a case. trial,
Based on substantial introduced the jury evidence at find that in reasonably could the case used physical actual sufficient any force to overcome resistance the par ticular victim he had chosen have might reaching offered. In our regard, conclusion in this we neither consider nor decide whether the actual force physical which will establish the force element a simply be shown of through evidence the Raines, v. force inherent in the sexual act at issue. But see State (1985) 300, 72 N.C. App. S.E.2d 279 to such (declining adopt 14-27.5(a)(l)). definition We a of “force” under expressly N.C.G.S. § defer on that until question decision we are with presented Here, case which its the evidence tended requires resolution. show physical to the defendant used force surpassing actual inherent in act victim. upon the sexual he committed the reviewing sufficiency
When the of the to support evidence conviction, a defendant’s as reviewing when a defendant’s motion admitted, evidence,- to dismiss for evidence a lack all whether competent incompetent, light must be considered in the most Scott, See State generally favorable to the State. v. (1988). every S.E.2d The State is entitled to reasonable inference. the State must deemed Evidence favorable to to be true, and any inconsistencies or contradictions therein must be disregarded. Id. The is whether there is question Court of each element crime charged substantial evidence essential of the THE IN SUPREME COURT crime. Substan- was the perpetrator and whether the defendant mind might relevant as a reasonable tial evidence is such evidence support a conclusion. accept adequate [1] issue dispute this case is whether there was sufficient the defendant’s convic support evidence of the element of force to 14-27.5(a)(l). under N.C.G.S. tion for offense State, the evidence tended Taken in the most favorable to light strangers were to show that the defendant and his victim absolute Nevertheless, the hospital each entered other. With no lawful to do patient. in which victim was a basis so, hospital door of the victim’s pushed open into her of the and entered unbidden night room the middle from suffering darkened There he found the female room. through which she cystic tubing fibrosis and attached closed, *8 Her intravenously. eyes were being administered antibiotics no conscious. and the defendant had reason to believe she was condition, the back Finding pulled his victim in this defendant bed, up pulled the pulled gown, the bedclothes on victim’s her her She panties, put into hair. fingers pubic down his into her eyes, immediately pushed finger and he opened thereby committing necessary the sexual act to establish vagina, slightly, a sexual When his moved the defendant offense. victim room, door which immediately went to the of the darkened hospital room, escape. he had and made his Such entering closed after the by might conduct not amount to force sufficient a defendant the any overcome resistance of the victim or will of the Alston, if, to resist in the actions were directed as defendant’s who, a over a of time and after long period toward woman before act, alleged voluntarily permitted the criminal see in identical But Susan regularly engage generally conduct. (1986) (a Estrich, article, L.J. de Rape, thoughtful 95 Yale by study “a law rape scribed the author as as an illustration law,” makes strong arguments of sexism in the criminal which the law should treat such conduct as “force” effect that force). Here, on or should the element of even those facts abandon however, the entered a where the evidence was that defendant in middle of the and went into the room hospital night the before, jury reasonably never a patient a whom he had seen could bedclothing, pulling up find that the pulling his actions back victim’s aside to actual pulling panties amounted gown, cases. as that term physical applied “force” to be IN THE SUPREME COURT
STATE v. BROWN N.C. 262 Pursuant to our order allowing bring defendant’s motion to issues, forward additional the defendant has briefed and argued other issues before this We turn now Court. to an examination of those issues.
[2] argues that the trial court erroneously instructed on the element jury required of force 14-27.5(a)(l). offense under Specifically, N.C.G.S. complains that the trial court erred in instructing jury follows:
Secondly, the State must prove defendant used or threatened to use force sufficient to overcome resistance the victim might may make. Force or threat of force be either Thus, actual or constructive. necessary satisfy the force force; this element need not physical be actual it can be con- Fear, structive force. or fright place coercion take the of actual force. A threat which under all of the circumstances reasonably bodily then would existing induce fear of serious harm in the a person ordinary mind of firmness and did in fact create such a fear the mind of the victim would constitute the constructive force requisite required law. The defendant objected part to this of the trial court’s instructions. argues He such instructions could have led the to convict fear, merely if the jury found that the victim suffered from fright coercion, fear, or but did find that such fright coercion not. was induced the defendant’s expressly actions. The trial court instructed, however, could convict defendant on the theory of a threat of force sufficient to overcome the victim’s will, if the threat he made “under all of the circumstances then *9 reasonably bodily would induce a fear of serious existing harm in the person ordinary mind of a firmness and did in create fact added.) such a in the mind the victim.” This (Emphasis fear is without merit. argument [3] The defendant also argues that an instruction permitting jury upon theory to convict the defendant of a threatened use of force was error in the case present unsup because was ported by any evidence that the defendant’s actions in fact created a fear in the mind of the victim prior committing the sexual offense. we do not Again, agree. show
Substantial evidence case tended to eyes he had opened and saw the defendant after v. BROWN
STATE hair, actually he but before had pubic his hand on her placed the victim finger. regard, with his In this vagina penetrated testified as follows:
Q. Now, eyes until this ultimate you your opened from the time occurred, you say that took? many would long act how —how hours. A It seemed like A. matter of seconds.
Q. you there? you thinking lying were were What I I what to do. was A. I was in shock. didn’t know afraid hurt me or continue what he had started. that he was going do. I didn’t know what
Q. happened What then? away He my lying A. I I was still down. walked leg. moved bed, the door. from the started towards Q. time? your What was emotional state at that A. I in shock.
Q. you frightened? Were Very much so.
[A.]
Q. you frightened What were about? was, why they were there what A. I didn’t know who it try I if he would they were to do next. didn’t know going to kill me. added.) reasonably could testimony, From this
(Emphasis victim, result of the defendant’s presence have found that the as a her, that the defend- in her room his actions toward was afraid her, hurt “didn’t know what to do.” Her fear caused ant would finger the defendant to push her to do and enabled nothing Further, reasonably have concluded could vagina. into that, circumstances, the defendant’s and actions presence under the sufficient to overcome resistance amounted to a threat of force of the victim.
[4] The defendant next argues that the trial court erred declin instruction give pattern jury the defendant’s ing request perpetrator of the defendant as the *10 concerning identification charged. alleged the crime As error here is not to have arisen States, under the of the Constitution United burden is on the that, committed, defendant to show had the error not been a dif- 15A-1443(a) ferent result would have been reached at trial. N.C.G.S. § (1988). arguendo that the trial court in Assuming failing erred give requested, instruction we conclude that has failed to show that the error was prejudicial. case,
In the present the victim’s identification of the defendant perpetrator absolutely as the of the crime charged unequivocal at all times point from the of his moments after apprehension the crime was through committed the trial of this case. Nurse Horsely’s identification of him as the man the hall at about a.m.) the time of the crime 1:10 (approximately unequivocal. was also
Further, by the instructions the trial given court made clear convict, jury jury that before the could must jury be beyond satisfied a this reasonable doubt that committed defendant the crime charged. As the trial court defined each element of the crime, it stated that the “the expressly jury must find that defend- engaged ant” had conduct sufficient to establish that element. The trial court then further the jury: instructed you I if charge you beyond
So find from the evidence and 22, 1989, . . . reasonable doubt that on or about December John Brown in a sexual act with the engaged defendant , . . . he [by and that did so means that established , your duty the elements of the crime ... it will charged] to return a verdict of guilty second-degree as charged. added.) In of the victim’s identification
(Emphasis light unequivocal given by of the defendant and the instructions the trial court case, we are convinced that had a clear jury beyond that it must be satisfied a reasonable doubt understanding that this committed the crime in order to return charged Shaw, 797, 804-05, a verdict of See State v. guilty. (1988). Therefore, S.E.2d 550-51 the defendant has failed to carry of showing prejudice. burden
[5] Finally, argues the trial court erred failing attempt to instruct on the lesser included offense to have the failing ed sexual offense and lesser in- consider a verdict him of that returning finding guilty *11 IN THE SUPREME COURT 274 v. BROWN
STATE (1992)] N.C. 262 [332 trial, introduced at the evidence Having reviewed eluded offense. that, tended to show that all of the evidence we are convinced all, he committed the any crime at committed if the defendant In he was tried. offense for which sexual crime of situations, on lesser charge must refuse to the trial court such 210, 201, 321 N.C. Bagley, State v. E.g., offenses. included 1036, (1987), denied, 244, 99 L. Ed. 2d cert. 485 U.S. 249-50 S.E.2d (1988). reasons, the State intro- we conclude that foregoing For use of force —both evidence of the defendant’s duced substantial — trial was other- and that the defendant’s actual and constructive un- we reverse the Accordingly, error. prejudicial wise free of remand this case of Appeals decision of Court published the Superior its further remand to for Appeals to the Court Court, of the trial judgment reinstatement of the County, Pitt court. and remanded.
Reversed concurring. FRYE
Justice separately write majority, I of the but opinion concur for this Court opportunity an excellent presents this case because already in our law: implicit what I is say explicitly believe and sexual offense rape and lack of consent the elements of force demonstrates, this satisfied when the cases case, be by surprise.1 the attack was carried out will person,” of another “by against force phrase, statutes “means the and sexual offense rape found our state’s when it was used to describe some as it did at common law same 534, 539, Locklear, 304 State v. rape.” the elements of (1988). (1981); 500, -27.5 see 14-27.2 to 284 S.E.2d N.C.G.S. §§ law, lack of consent for the elements of force and At common showing mere in law implied “upon the crime of were rape unconscious, asleep, who is person intercourse with a of sexual give not resist or and therefore could incapacitated or otherwise “surprise” upheld on a this defendant’s conviction cannot theory 1. I realize that However, jury. given the theory was not submitted to because this theory argued this was briefed and importance this issue and the fact that subject proper for our consideration. parties, I it to be a both believe STATE v. BROWN N.C. 262 consent. ... In such case intercourse with the victim ipso because the force rape and lack of consent are implied facto Moorman, 387, 392, in law.” State v. S.E.2d (1987); Dillard, 318, 322, 505-06 see v. State 90 N.C. 368 S.E.2d App. (1988) (force 442, 445 implied and lack of consent in law when a victim who is perpetrated upon sleeping or similar- *12 ly incapacitated).
The teaching of the common law rule is clear: force and lack of consent when implied the circumstances surrounding the attack are such that the victim cannot give resist or consent. attack, case, A surprise as in this certainly fits within this common- case, sense rule. The circumstances surrounding the attack in this example, were such that the victim could not resist or give By consent. the time she realized what was happening, offense was complete. Allowing an attacker to where escape justice force, by the attack is carried out surprise, without actual although indefensible, only morally not would be fly but would also face of the well-settled common law implied rule of force.
The “surprise theory” of force is implied certainly not new. More than six ago, decades Court of Missouri held Supreme the force element of that state’s rape statute was satisfied by a attack surprise physician against of a a female State patient. (Mo. 1926). Atkins, Atkins, v. 422 S.W. In the victim visited physician replace to the bifocal lenses her Id. eyeglasses. 423. During at an examination eye to determine the cause of her trouble, put the victim’s heels in the of stirrups chair, a sides, drew legs apart, pressed her stomach and against Embarrassed,
and removed her bloomers. Id. the victim closed arms; eyes and covered them with her then sides, “began press against her and then the felt prosecutrix Id. something press against private parts.” The defendant argued that he could not be convicted of rape “alleged because act of was not forcible.” Id. 425. The ravishing disagreed. at court
If it is under our rape statutes for a man to have illicit sexual connection with a woman while she is in- asleep, capable when consenting, no more force is used than is woman, necessary effect penetration with the consent of the why we are it rape unable to see is not also for a man to improper by have sexual connection with a woman accomplishing awake, penetration through surprise, utterly when she is but EDMUNDSON v. MORTON unaware of his intention in that In such case the woman regard. consenting, because she has no incapable opportunity give sleeping consent more than has a woman. 426; Borak, 815, 821, People Id. at see also v. 13 Ill. App. 3rd (1973)(force 301 N.E.2d when implied “rape or deviate sexual by acts statute are under the proscribed accomplished pretext medical treatment when the victim is and unaware of surprised, (1952) involved”); the intention Rape (“[B]oth C.J.S. at com statutory mon law and under if provisions, is deceived [the victim] her, surprise perpetrated fraud or as to the act on it is rape, resistance.”). she makes although no sum, In I already implicit believe it is in our law that force and lack of consent elements of rape and sexual offense can attack, here, be satisfied when is carried out surprise. I say explicitly. believe is time to so *13 EDMUNDSON, EXECUTOR, R. GENE the Estate of C. Julian Wilson (Deceased) MORTON, MORTON, v. W. MARGUERITE JOE B. EDWIN B. WILSON, MASON, MASON, TOLLEY, W. W. L. L. LOUISE CAROLYN JONES, STOVALL, HOWARD, HOWARD, W. W. H. JAMES A. ROBERT W. POMETTO, HOWARD, GEORGIA HOWARD JOHN GLADYS SYKES WALLACE, ELIZABETH D. and SYKES B. NANCY McKEE 333PA91
No. (Filed 1992) September — (NCI3d)— 1. bequest Wills 58.1 —general bequest stock splits stock and —right dividend reinvestments to accessions A stocks was bequest corporate intended to be a general bequest, and the beneficiaries were thus entitled to receive accessions to the stocks from routine stock splits dividend reinvestments, where testator bequeathed “all of the stocks . . . I may which own as inherited my me from wife” alike, to the wife’s nieces and nephews, share and share thereafter listed “for identification purposes” the number of wife; shares of each stock that he inherited from his the entire- ty of the will reveals that testator grouped categorized according beneficiaries into two classes to their relationship himto and the of the origin property which each class was