Tucker v. . Moye

| N.C. | Sep 5, 1894

In Lassiter v. Wood, 63 N.C. 360" court="N.C." date_filed="1869-01-05" href="https://app.midpage.ai/document/lassiter-v--wood--3653571?utm_source=webapp" opinion_id="3653571">63 N.C. 360, Mr. Justice Reade said of the will then being interpreted: "It is apparent that the leading purpose of the testator was to make all his children equal. The purpose of the testator, as gathered from the will, is always to be carried out by the court, and minor considerations, when they come in the way, must yield. Especially is this so when the purpose is in consonance with justice and natural affection."

Of the will we have under consideration here, it may be said, we think, that it is apparent that the leading purpose of the testatrix seems to have been to divide her estate equally between certain persons named therein. She gave to the appellant one-fourth of her estate, and to the plaintiff one-fourth. Her estate consisted of three promissory notes amounting to $4,000 principal money, and "a small amount of personal property which has since been sold for $30."

This general purpose of the testatrix, that her estate should be divided into four equal parts, of which the appellant should have one, must be carried out, and minor considerations must yield to it. The words used by the testatrix in the third item of her will must be so construed as to make them harmonize with this general purpose, if such a construction can be reasonably put upon them.

It seems to us that this can be done, for we have only to declare (75) that when the testatrix said that from the plaintiff's one-fourth of her estate he should deduct $2,000, with interest, advanced to him, for which she held his note, she meant only that that note should be used as might be necessary in settlement of plaintiff's share of the estate. And if it is said this construction does violence to the words used in said item, it may be replied that the construction contended for by the plaintiff and adopted by his Honor seems to us to do violence to the whole will and to thwart its apparent general purpose, which is in consonance with justice and natural affection. This is more reasonable, we think, than a construction that will bring us to the conclusion that the testatrix meant that one of her legatees, to whom she gave one-fourth of her estate, should get nothing, while another legatee, to whom she likewise gave one-fourth of her estate, should get what was worth more than $2,000. The construction contended for by the plaintiff would bring about that result, it seems, if adopted, and that, too, while, so far as appears, the condition of her estate was not changed between the date of her will and her death.

Our conclusion is that, in a settlement with the appellant for his one-fourth part of the estate of the testatrix, the plaintiff must account for the note mentioned in the third item of the will.

Reversed.

Cited: Bowden v. Lynch, 173 N.C. 206.

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