36 N.C. App. 593 | N.C. Ct. App. | 1978
The search for testamentary intent is the primary task in the interpretation of this or any other will. We must look at the language employed by the testatrix in the light of the circumstances known to her when she drafted her will. Other “rules of construction” so often recited by the courts are, in many cases, merely labels that are placed on the court’s conclusions in order to buttress the result reached.
Emma Ward’s husband and her son were both lawyers. Even so, she would probably agree that only lawyers would argue that there could be any doubt as to what she meant when she said, “I give the use of the Ward Home Place ... to the heirs of John Hardy Ward as long as they wish to live there . . . .” At that time John Hardy was dead and survived by a widow and the four children, to whom she also gave a $2000.00 bequest. Emma Ward’s late husband, G. W. Ward, had allowed John Hardy Ward to use that property from 1895 until 1918 when G. W. Ward died. Emma continued to allow John Hardy Ward to use the land until he died in 1919. Thereafter, Emma allowed John Hardy Ward’s widow and children to use the land. It seems perfectly clear that Emma intended for John Hardy Ward’s widow and children (although unrelated to her) to continue to enjoy that privilege for so long as they wanted to live on the land. As a matter of fact, one of John Hardy Ward’s children, Carroll, did live on and use the land until his death in 1976. John Hardy Ward’s widow, Laura, lived on the land until her death in 1953. Other than Carroll Ward and his immediate family and Laura Ward, the widow, no one else lived on the land.
In other parts of the will the testatrix made it clear that she recognized her only child and his children as the natural and primary objects of her bounty. Except for several rather small bequests she, specifically as well as by the residuary clause, left them the bulk of her estate including several other tracts of land, cash, securities and jewelry. We also note that she did not hesitate to devise “in fee simple” when that was her intention.
In another part of the will, the devise to Mariah Gates, testatrix elected to devise a privilege of “use” rather than a freehold interest in real estate. There she left the “use” of the house on Dunstan Lane for life, “rent free, repairs to be kept up
Defendants rely heavily on G.S. 31-38 which provides that a devise is presumed to be in fee simple unless the will shows an intent to convey an estate of less dignity. That section merely changed the common law rule that a devise without words of perpetuity or limitation conveyed a life estate only. Morris v. Morris, 246 N.C. 314, 98 S.E. 2d 298 (1957). Here, where testatrix only devised the “use of” the property so long as the beneficiaries “wish to live there,” she “in plain and express words” showed an intent to devise less than the fee. Defendants further, and correctly, argue that our courts have held that the devise of the “use of” property is the equivalent of a devise in fee. See e.g., Poindexter v. Trust Co., 258 N.C. 371, 128 S.E. 2d 867 (1963); Schwren v. Falls, 170 N.C. 251, 87 S.E. 49 (1915). The rule has no application, however, when the will shows an intent to pass an interest that is less than a fee. See Rountree v. Dixon, 105 N.C. 350, 11 S.E. 158 (1890).
For the reasons stated, the judgment is affirmed.
Affirmed.