*1 TEEM, SPBING 0.] HuliBAltD WlGGINS. V.

From a verdict of guilty judgment imposing penal servitude eighteen months, defendant appeals.

Attorney-General McMullan and Assistant Attorney-General Moody the State. John F. defendant, appellant. Matthews for The defendant, being without counsel in below, the trial Pee Cueiam. seeks challenge Court the first (1) the admissibility time portions the evidence adduced against and (2) the him, sufficiency carry the case to the jury. evidence record However, the discloses no objection to any the evidence nor motion for judgment as of nonsuit. In fact, in the record is an objection there exception nowhere ruling the trial court. The objections, first made in this Court, come Howell, too late. Decision is controlled what is said S. here Gaston, N.C. 78, 79 S.E. 2d and S. v. 73 S.E.

True, Sloan, itself is appeal exception S. v. judgment, 238 N.C. 78 S.E. 2d judgment but appears regular form and is supported by verdict. It would seem defendant has applied forum. wrong

No error. HUBBARD, LIZZIE PATE, B. Executrix Estate of CHRISTIAN GAY WIGGINS, Deceased, WIGGINS, v. JAMES MOLLIE A. LOUISE JAMES WIGGINS, WIGGINS, WILHELM JOHN DEWEY JOHN DEWEY WIG GINS, JR., WIGGINS, WIGGINS, JAMES HAMPTON SAMUEL PAUL WIGGINS, ARCHER, STANLEY PAUL JOHN WILLIAM MARY FRAN- ARCHER, ARCHER, JR., CES ARCHER, JOHN WILLIAM ROBERT WALTER ARCHER, ARCHER, CAROLYN WHITE BARBARA JEAN ARCHER, ARCHER, JESSE WAYNE J. FORREST DAISY ARCHER ARCHER, BRITT, JR., ARCHER, ROBERT CLINTON ROBERT CLINTON ARCHER, EDWARDS, DEBORAH LOUISE MARY ALICE ARCHER ARCHER, HUBBARD, PEGGY ANN J. SAMUEL JUANITA HUBBARD DAVIS, GAY, GAY, GAY, H. COMPTON FRANK H. FRANKIE SUE GAY, WHITE, HARVEY H. BELLE VIRGINIA GAY BARBARA LEE WHITE, KYTE, CLAYTON, BARBARA ANN GAY ALMA GAY CHRISTINE JR., GAY, GAY, WILLIAM C. ELIZABETH BLANCHE DEWEY TAYLOR, HARRISON, ELIZABETH GAY DEWEY GAY ERNEST TAYLOR, JR., GAY, WOOD NELLIE GREENE GERTRUDE GAY BRY ANT, GAY, JR., WHITE, HARVEY H. NELL GAY DOROTHY GAY WATKINS, WHITE, VICK, WHITE JOHN E. LILAR BIRDSONG OMA HARRIS, HARRIS, LEE VICK BATTE DIANNE JAMES SANDRA HARRIS, VICK, VICK, VICK, JAMES DEE JUDITH ANN NELL JOYCE NEAL, ADAMS, NEAL, VICK LEE ELLEN MAY PATRICIA ANN VICK SHIELDS, SHIELDS, SHIELDS, JEAN MARIE LINDA TART JAMES THE COURT. IN SUPREME

Hubbard *2 SHIELDS, SHIELDS, ELIZABETH ANDERSON ANN LAURICE VICK ALLEN, LIGGAN, HUBBARD, ELIZABETH MINA VICK BIRDSONG STOCKWELL, FAISON, ELIZABETH HOWARD GLORIA STOCKWELL STOCKWELL, STOCKWELL, JR.; STOCKWELL, SHIRLEY HOWARD HOME, INC., Corpo EASTERN MASONICAND STAR a North Carolina BIGGS, and J. CRAWFORD ration, Greensboro, Carolina, North DUNCAN, DILLON, CUNNINGHAM, JOHN N. TROY EUGENE GROVER L. B. C. C. FERGUSON, FLOURNOY, L. B. and A. H. O. LINEBERGER SPIVEY, EDENTON STREET METHODIST Trustees RALEIGH, CAROLINA, CHURCH OF NORTH Persons, and All Other Being Specifically Unknown, Being, and Known or in or Not in Not May Herein, Named Who Have or Have or Claim an Interest in the PATE, CHRISTIAN GAY Estate Deceased.

(Filed May, 1954.) 1. Wills §33— presumed ordinarily dispose a While it will be testator intended to property property him and did owned not intend over testamentary disposition, presumption did which he of as evident intent of the not have fact, presumptions construction, like other fact technical rules of distinguished law, permitted from rules of he not to overrule the testator, implied language express or in of the instrument considered as a whole. 3.Wills 39— §§ language ambiguous doubtful, of a will is or is com- Where evidence petent surrounding will, show the the circumstances the execution of the including condition, property, nature and extent of testatrix’ and her family will, relation to so as to the beneficiaries named nearly possible got viewpoint as testatrix’ the time the will was exe- cuted, doubtful, language ambiguous and even if will is or may prejudicial. admission of such evidence not be 3. Wills 31—§ gathered general purpose The intention of testatrix as from the of the significance expressions, enlarged will according of the various or restricted intent, will, given phrase its their real is the will not be meaning contrary gathered language of literal the instrument considered as a whole. if intent as 4. Wills §36— Ordinarily, bequest where a definite and certain or is made devise will, part part property disposed some the comply of the same is a later of the necessary original only bequest devise is reduced to the extent provision in with the later the will. 5. Wills 39—§ will, In an action to of the estate construe the extent character ascertaining should intent of be established when material as an aid in will. maker 6. Wills §34e— bequest proiierty Where the in a amount of intended to be embraced ambiguous later directions doubtful under of the SPRING- O.]

Hubbard disposition property the instrument for the of testatrix’ inconsistent possible interpretations prior though bequest, with one of the even ambiguity illegibility, such directions are ineffectual because of proper ascertaining property to be considered the amount of prior bequest, intended to embrace within the since such later light upon regard. throw testatrix’ intent in this government bequest 7. Same —Where amount included am- biguous, the amount must be ascertained with intent accordance gathered from entire instrument. nephew Testatrix directed that a named “is to have the Bonds & on possessed bonds, Hundred Dollars.” At her death testatrix in an unmarked two sets of one envelope payable of the value of three hundred dollars nephew, envelope personal herself the other marked her account, dollars, payable in the amount of six thousand to herself alone. surviving, Testatrix left no children her *3 but was survived 46 nieces and nephews grand-nieces grand-nephews, sister, and and two brothers and one bequests relatives, specifically excluding and made to 45 of these four from stated, equality among share for reasons with substantial the bene- provisions attempting ficiaries named. Later of the will up fifteen hundred dollars in bonds and to set a trust fund for business schooling ambiguity illegibility. of certain children were ineffective for or gathered In Held: accordance with the intent of testatrix as from the entirety, phrase question of the instrument construed in in its properly delivery was construed to direct the of the three hundred dollars joint nephew bequeath in bonds in their names to him one cash, bequest in hundred dollars rather than of the six thousand dollars him, grossly in bonds and one hundred dollars which would result in a disproportionate gift nephew. J., concurring. Bobbitt, Ervin, J., dissenting. J., J.,

BaRni-iill, C. concur in dissent. Winborne, Hall, Appeal Judge, defendant J. Samuel Hubbard, Special Term, 1953, December Wake.

This action was Uniform brought pursuant of ob- Declaratory Judgment 1-253, Act et (G.S. seq.), purpose in and inter- taining guidance advice and of the court construction in pretation Gay Pate, the last will and testament of Christian administration her estate. in The facts of this are stated disposition appeal fully essential to the included judgment the court’s conclusions of law and the findings fact, : therein, which are follows on to be being coming

“This cause calendared for duly hearing heard before the December undersigned Judge presiding and a trial jury Civil Term of Wake Assigned County Superior Court, that the been waived and all Court having parties having agreed open law in this should hear and all of fact and issue questions Court decide THE COURT. IN SUPREME Hubbaed this that all involved in parties to the Court action, and, appearing it service, by personal served with summons have been properly action either before of the State and are service outside by personal or by publication, Court. and all all and incompetents minors appearing it further “And L. Pur- through action are A. represented parties unknown this Barbara Lee White, ad litem for Frankie Sue Gay, Jr., guardian rington, William C. Gay, Alma Gay Kyte, Ann Christine Gay Clayton, Barbara Taylor, Ernest Wood Dewey Gay Harrison, Gay, Elizabeth Jr., Blanche Paul Wig- Wiggins, Stanley James Hampton Dewey Wiggins, Jr., John Ann Archer, Archer, Peggy Louise Archer, Deborah Jesse Wayne gins, Ann Joyce Judith Dee Vick, Dianne Harris, Batte Sandra Harris, James Linda Shields, Ann Jean Marie Neal, Patricia Ellen Lee Vick, Adams, Ann Elizabeth Shields, Shields, Elizabeth James Anderson Shields, Tart Barbara Jean Stockwell, Howard Stockwell, Jr., Stockwell, Shirley or being or unknown, or known persons, all other Archer, may who have in this action, and not named being, specifically who Gay deceased, Pate, Christian an interest the estate claim unknown spouses for all action, the above entitled defendants in named specifically and not unknown, known or defendants, of Chris- in the estate an interest have or claim may who have action, filed duly ad litem has guardian and that said deceased, tian Gay Pate, answer herein, and, of counsel arguments evidence and heard the having

“The Court facts: following finds the hereby law at issue, of fact and matters *4 of Will of Christian transcription accurate the true and “1. That follows: dashes, is as indicated being words Pate, indecipherable Gay reference) numbered for convenience of said will arc lines (Note: & I a sound right am Gay Pate, 1 IChristian anything If my this is Will. 2 mind,and a I do I want before it to me happin 3 should for I don’t graves family put 4 nice marker & & Lizzie Hubbard P. 5 likethe there. one of my administrators White is act as 6 DorothyGay one thousand I want them have 7 state. & I want time, for their piece

8 Dollars & car my to have and Louise Wiggins 9 Jim my & niece Gay dollars. Christine 10 5hundred rl Course for Business a nuf 11 tohave rl & house is to one, niy 12 if will take she H tois family it & sister my like 13 stay H they if for more year 14 livehere tH TEEM, SPEING N.C.] V.

HUBBARD WIGGINS. need to pay the & up keep, put taxes fifty Dollars a month bank for Dorothy Gay.

if make they that above expenses. Lizzie is keep one five hundred for Lillie Yiek to buy thing that she really need. is Mary Archer hundred, have. 2. & cash. Sam Hubbard tois have Bonds & on Hundred Dollars & Nita H. is to Davis have hundred & dollars, in cash. & my great fifty nieces & Loris Allen piece. D. is to have one & hundred. my church to have one Hundred

in cash. & my Brothers don’t none so need they get Dollars each. five other && shall to for a & stay trust while if one any of the-children fish high help them with a Business course to five up Hundred

Dollars piano each. The & Dorothy Gays any lizzi thing she wants in my house. else & John

Mr. can them & "White he help

shall have hundred dollars for his help to on a car for & if pay them. any one tries to Break this they are to have nothing at I all, things these done, want don’t have to they give Bond. hundred, one fifty dollars more to the & Masonic eastern Star a room home to furnish in the & hospital. my when home is it sold shall & be divided between nieces & my nephews my great nieces and 2 hundred a nephews, piece & & my sister shall have 5 Dollars. Hundred I don’t Bill want Jr. to Gay Harvey Gay & have Drink throw it so they way, 1 doe want Almo Bill Gay, Wife

2 hundred Dollars to her children feed of him getting instead it she shall

Clint it Bill use children. Archer Foris O *5 H not to I to anything have Drink. don’t want them they to have have china if she any. my Lizzie to wants ^[05] it. & flowers I want fifteen graves. hundred dollars in saving Bonds This is "Will. my Feb. « Pate. Gay. Christian. THE IN SUPREME COURT. Wiggins.

Hubbakd v. “2. 45 of persons by That named her will as said line ‘Bill Gay Bill in line 50 her said will as or Foris and Clint Archer’ testatrix to be those her by persons among were intended nephews bearing i.e., William J. Gay, Sr., Archer, C. John William For- names, Sr., Archer, and est Archer Robert Clinton Sr. 31a

“3. That lines testatrix’s will the ‘anything and words in my only ... house’ were intended testatrix to include furni- else ture testatrix’s house.

“4. a marker and individual been plates pur- That name family have chased, on testatrix’s lot in Montlawn Memorial and erected paid North at cost Park, County, $636.83. Carolina, Wake “5. That testatrix’s has been delivered to J A. Wiggins automobile ames and Louise 24 of ‘&

“6. That the in lines and said nieces will, my great $50.00 piece.,’ bequest & 50 a was intended testatrix to constitute each of her great living testatrix’s nieces at death. in lines and 21 of language appearing will, “7. That the testatrix’s & on Hundred Dollars,’ to wit: Hubbard is when ‘Sam other in said will and with the fact provisions appearing considered with held two of bonds set in an unmarked (one that testatrix death sets U. S. envelope consisting Bonds, D, payable and Series three set in Hubbard,’ ‘Mrs. Christian G. J. Sam other Pate Mr. account,’ and envelope personal consisting marked ‘Mrs. W. L. Pate, $1,000 D, payable Gay Pate’) U. S. to ‘Mrs. Christian Bonds, Serios as hereby the Court finds subject interpretation is ambiguous 21 of ‘Sam a fact that said lines language appearing Dollars,’ & on was intended to Hundred Hubbard is to have the Bonds Bonds, D, payable $100 U. Series Hubbard the three S. bequeath to Sam Hubbard,’ $100.00, Pate or J. Sam ‘Mrs. Christian G. Mr. the language to no under property Sam Hubbard is other entitled rights Sam prejudice does finding of said bequest; of said part other will. Hubbard under surviving or issue Pate left no children Gay “8. That Christian evidence to pleadings cannot determine and the Court will, reading 29 of her in line refer children the testatrix intended what with.’ help fish them high ‘of the-children fact and upon foregoing findings TheREKOR®,upon the “Now, as matters concludes the Court pleadings, in the admissions facts follows: and decrees as adjudges law and orders, Pate, set Gay Christian of the will transcription “1. That the Book as set forth in complaint forth in Exhibit B attached to of Wake Court of Superior Clerk Office of the page of Wills S, findings in accordance amended hereby and the County, same is be, *6 SPRING- O.] Hubbard of facts and above, No. that the of Clerk of Superior Court "Wake County and he be, and hereby authorized directed to amend tran- of scription said aswill the same in Book appears of Wills S, page 12, Office of of the Clerk of Superior Court to County Wake conform with said of facts No. 1 findings as above, and, amended, said transcript is hereby and ordered, adjudged decreed to be a true and accurate tran- scription of of the will Christian Pate, deceased. Gay

“2. That provisions under the lines 31a of and 32 the will of Christian Gay Pate, testatrix bequeathed her piano to Dorothy Gay White Watkins also bequeathed and to Dorothy White Watkins and Gay Birdsong Elizabeth Hubbard pieces of contained furniture testatrix’s home of at the time which Dorothy death Gay either White Watkins or Birdsong might Elizabeth Hubbard select and elect take.

“3. provisions under the of That lines through 52 of said will, of executrices said are given implied power to after sell, two from years testatrix’s death, homeplace testatrix at 7 East Lane Street in Raleigh, City North manner and to Carolina, such such person persons such as for prices they might at deem the best interest said and to estate, proceeds distribute of said as fol- sale lows: (a) $500.00 to testatrix’s Nell Gay White; (b) sister, nieces, each of nephews, great-nieces testatrix’s and great-nephews living her death, excluding William C. Gay, Sr., Gay, Jr., John Harvey H. William Archer, Sr., Archer, Robert Clinton and J. Forest Sr., Archer; $200.00 to Alma Norwood (c) wife William C. Gay, Gay, Sr., of her Gay use Barbara Ann Christine children, Gay Alma Clayton, William Kyte, Gay, Elizabeth that the Jr., Gay; C. Blanche sale said same is set forth and admitted in all homeplace, plead- as the and the confirmed and ings herein, hereby approved filed same is be, Hubbard, Lizzie Gay Pate, Executrix Christian B. the Estate make, empowered authorized execute deceased, hereby of sale; under her that no was person given deliver deed therefor to use or will, beneficiary, legatee, said devisee right under day July, 1951; legacies said after the 9th that the occupy homeplace 52 of said will are demonstrative through legacies, lines 41 provided homeplace of sale of said shall be and as such if the entitled, proceeds legacies, any deficiency in full all of to have satisfy insufficient to- such necessary of the estate the extent supplied assets general homeplace full sale of said expenses all and the legacies pay estate. paid general from the assets shall 11 and 12 of Chris- will, “4. of lines said That under the money to enough pay is to have Gay (Alma Gay Christine Kyte) tine this provision out one; carrying business if will take course set aside she is authorized directed hereby Executrix be, IN THE COURT. SUPREME Hubbakd Wiaams. benefit of Alma Gay Kyte tbe in full and complete discharge Christine 12 of legacy provided lines said the sum *7 $500.00 out of of general assets which sum is de- estate, hereby the the to be to of general pay expenses clared and therefrom the actual legacy, tuition, by books and incurred the said supplies Gay Alma Christine taking in from bona such Kyte offering a business course school fide the Alma may course as elect: that said Christine PROVIDED, business on must to such course and must such course Gay Kyte begin elect take or on or must such course before complete before March and default as shall not March in of which such funds theretofore 7, 1959, in residue said have the Executrix shall included the of paid by been be of distributed; any so in the of such payment portion Estate and and said funds in dis- pay authorized to legacy, hereby Executrix of said Executrix. cretion 31 of through That of lines said the other

“5. & if of the any (word indecipherable) one stay shall trust to while them a business to five Hundred help up fish with course high children as ambiguous incapable so indefinite to be each,’ vague, Dollars are are hereby under law therefore same of administration to void. and decreed be adjudged ordered, of reading: in lines 53 and 54 said will ‘I want That “6. the provisions for flowers are graves,’ so savings hundred fifteen dollars incapable as be of administration ambiguous vague, indefinite hereby same are ordered, adjudged law and therefore the under the be decreed void. wherefore residuary will no valid clause, That testatrix’s contains

“7. of, including any legacies or disposed funds not otherwise properties any by have been found this Court may may lapsed devises which and heirs at law among the distributees shall be distributed void, be as upon distribution Pate under the laws descent Gay Christian law, or heir at and particu- distributee any without exclusion intestacy, to in lines 26 and referred brothers without exclusion testatrix’s larly 50 of lines 45 and will. to in referred nephews, provided and other benefits That payment bequests “8. all properties and decreed that adjudged will it is ordered, testatrix’s legatees de- respective shall be delivered to Specifically bequeathed of the legatees will to said property; nominated said receive in full from the proceeds paid shall be proceeds sale homeplace deficiency supplied general to be of the homeplace, any of sale legacies paid shall general estate; thereafter assets remaining; any funds of the estate then available from extent funds among distributed shall be remaining the heirs of funds thereafter residue with the Pate accordance Gay Christian at law distributees SPRING 0.] Hubbakd general laws of descent and as upon distribution an intestacy; and if tbe funds or properties tbe Estate shall be insufficient to pay tbe various legacies and benefits provided under tbe will then sucb legacies and bene- fits shall in tbe following order, abate rata pro abatement within each (a) class: residuary benefits; (b) general legacies; (c) demonstra- legacies; (d) tive specific legacies.

“9. That tbe costs of this action, including a A. fee to L. Purrington, ad litem guardian Jr., aforesaid, tbe amount $400.00, to be taxed tbe Clerk, be they taxed hereby against tbe of Christian Estate Gay paid Pate tbe Executrix of tbe Estate of Christian Gay .be Pate, deceased. “10. That orders directed, herein or authority herein given, Lizzie B. Hubbard, Executrix, Executrix of Will tbe of Chris- tian Gay Pate, shall have equal binding effect and authority any other *8 who person may any time succeed Lizzie B. Hubbard as Executrix or who atmay any.timé'serve as or executor, executrix administrator c.i.a of Will and Estate of Christian Gay Pate.

“IT. That the U. Bonds, S. Series D, to payable 'Mrs. Christian were Gay Pate,’ of will disposed by said and shall fall into of Estate; residue Sam that Hubbard is entitled to three $100-.00U. S. Bonds, D, Series to payable 'Mrs. Christian G. or Pate J. Sam Hubbard.’ Mr.

“This 11th of day 1953. December,

“C. Hall W.

Judge Presiding, December, 1953, Assigned Civil Wake Term, County Superior Court.”' From the foregoing findings fact, conclusions of law and judgment, the defendant J. Samuel Hubbard appeals, assigning error. n &

Parker Sinlc plaintiff, appellee. for Lassiter, & Walker and Leager Ballard S. Gay appellees John Wil- ' n Archer, liam et ah Jr.,

A. L. ad Purrington, guardian litem. Jr.,

J. Ehringhaus, O. B. defendant, appellant. ’ J. The DeNNY, one to question be determined on this appeal is (cid:127) whether the testatrix to give J. Samuel Hubbard three $100.00 U. S. Bonds, Series which D, payable were J. Sam Hub and $100.00; or did bard, intend to give the six:$1,000.00 him U.'S. D, Series Bonds, payable Mrs. herself, Christian Gay Pate, ' $100.0.0? 206 THE IN SUPREME COURT. AVigqxsts.

Hübbakd v. are not if We inadvertent to tbe fact that tbe testatrix in tbe instant bad died J. Samuel Hubbard intestate, would bave been entitled to case tbe three U. Series as a Ervin Bonds, D, S. matter law. v. Conn, Revenue, Shaw, 225 N.C. 34 S.E. 2d v. 267, 402; Watkins Comr. 65 96, 234 2d 881. also a recognized N.C. S.E. There is presumption wills construing courts testator intended only dispose tbe owned him and did not intend to in a property devise be include be power over which did not have tbe quest property testamentary Jur., Wills, 1163, page 760; 57 Am. section Bank v. Misen disposition. heimer, 211 191 S.E. 110 A.L.R. 519, 14, It not unusual, N.C. rights tbe extent their however, persons testamentary to misconceive over which have no they property to undertake 180 104 120, S.E. testamentary Byrd, Elmore v. N.C. disposition. Alexander, 2d A.L.R. 584, 814; Benton 224 32 S.E. 156 162; 800, v. N.C. Patterson, Lamb, 40 229 29; Byrd 2d 662, Lamb 226 N.C. S.E. N.C. v. v. Burrus, 55 2d 48 2d v. 230 N.C. S.E. 592, S.E. Trust 156, 45; Co. however, in the of a will remember, interpretation must We nor neither technical testator, presumptions ascertain intent distinguished from rules applicable rules of as law construction, against as the case or the rule wills, Shelley’s construction rule evident intent the testa will overrule the permitted perpetuities, gathered from the lan expressly by necessary implication, either tor, 104 369, S.E. Herring, a whole. Carroll N.C. v. guage Bulluck, v. 102; Heyer 178 S.E. Haywood 684, 207 N.C. 892; Rigsbee, v. Cheek, 212 N.C. 356; Richardson S.E. N.C., Miller, Trust v. Wad 177; 25 S.E. Co. Trust Co. N.C. 705; dell, 2d 651. 67 S.E. *9 we find 731, section et 1135, page seq.,

In Am. Jur., Wills, 57 which all others of construction to testamentary one statement: “The rule meaning is that the said, and it has been assistant, servient are far as legally effect so given ascertained and the testator is to be any arbitrary rule, how- The intention will control testatorial possible. . . origin, its .” may ever ancient will provision that the the opinion of being

The court below the admitted ambiguous, testimony, of bonds is to the disposition the respect con- personal the extent of the to show objection appellant, over the named as beneficiaries her relatives who of the testatrix with were tacts in her will. of referred admission the evidence as error assigns

The the appellant Nell that her sister, Gay discloses which, substance, in sum above, home of the testatrix E. lived the White, her John husband, White, Pate; death of until Mrs. marriage of 1931 from the time their the who was to con- line 13 the will, to in sister referred Mrs. White the is SPRING 207 0.] Hubbard v.

tinue to in tbe borne for after 'death; live decedent’s two years Mrs. Pate’s Gay White Dorothy (now Dorothy White who was Gay Watkins), will, named as co-executrix of Pate’s daughter Mrs. is Mr. Mrs. the John E. White was born qualified and reared the Pate (She home. co-executrix of Mrs. but Merid- as Pate’s will later married moved to ian, Miss., was the Mrs. Pate permitted by resign.) court to That from time time to visited J. Samuel a Nita H. Davis Hubbard, nephew, (Juanita niece, Hubbard a Davis), nieceby.mar- a Mrs. Lizzie Hubbard, and James a riage, A. That Samuel. Hubbard Wiggins, nephew. J. visited Mrs. so did home; Pate several times while lived in her the Whites Wiggins; that Lizzie A. Hubbard her more often than James visited anyone else, and that Hubbard visited only Lizzie was relative that the Mrs. during Pate the last two or three years of life.

In our opinion, irrespective ambig- Pate is Mrs. the whether uous or doubtful the respect contended this evidence appellees, was not prejudicial It tends appellant. simply to show that the personal contacts Mrs. with her of her relatives, objects Pate limited bounty, were to those with Whites in her largely who lived Samuel his home, J. Hubbard and sister Nita H. Davis Hub- (Juanita bard Mrs. Lizzie Davis) Petersburg, Virginia, Hubbard of Emporia, Virginia, Greene, James A. West Wiggins Georgia.

In to discover the intent of seeking testatrix, when used or of doubtful it is ambiguous meaning, proper the court to take into consideration circumstances surrounding the execution will, including condition, nature, extent of her her relation property, family to her and to ship beneficiaries named the will, nearly so as at the possible get time the will viewpoint was executed. 57 Wills, Williams, Am. section et Jur., page 741, seq.; v. 1144, Herring 153 Barham, 138 N.C. 69 S.E. Am. St. Crouse 140, Rep., 659; v. 979; N.C. v. Haywood Rigsbee, supra; Anderson Bridgers, v. Bulluck, Cannon, 184 S.E. v. 78; Heyer supra; N.C. Cannon v. Missions, Trust N.C., 611, 17; S.E. 2d Co. National 39 S.E. 2d Cannon, In supra, Cannon late “The Stacy Justice said: Chief

intention of the testatrix her will. This intention is to be gathered will and purpose significance general the various enlarged restricted to their real In according intent. expressions, the different the courts not con interpreting A single phrase. thing fined to the literal within meaning the inten within A though tion is the will not within letter. regarded thing *10 is not the will if not within within the letter also the intention.” within Bell, Corl, S.E. 2d 232 613; Bank 33 Weathers v. N.C. 96, v. N.C. Johnson, 233 N.C. 2d 600; 570, 61 S.E. 2d In re Will S.E. 12; IN THE SUPREME COURT. Hubbard v. Waddell, supra; Efird, Trust Co. 234 N.C. 2d 279; v. S.E. Efird Schneider, 235 Trust Co. It the testatrix was a limited apparent education, is that person very her will. who undertook to write own it Generally would seem speaking had in mind a and the comprehensive plan she rather elaborate of her but did have sufficient and train- disposition estate, experience to make her in to ing respect bequests in such matters intent certain or She had and and forty-six nephews great- clear effective. nieces either four of whom two excluded; living brothers, nieces and she great-nephews, Except made to these relatives. sister; bequests forty-five and she one her in with connection the administration rendering those service in her was reared Gay (now Watkins), and White who estate, Dorothy is alike unless J. Samuel Hubbard substantially all were treated home, $100.00, her in sum aggregate $6,300.00, to all of bonds the take nephews, great-nieces the other nieces and along with plus $200.00 in division the excluded), those (excepit expressly great-nephews sale her home. proceeds had two sets of bonds in different contain- envelopes,

The testatrix one value, $300.00 other The ing par $6,000.00 par value. $300.00 Hubbard, $100.00 testatrix and J. Sam the-name other largest given amount to of her relatives would be the cash, estate, except with the than those connected administration to the who, according James Wiggins, $500.00 sum of A. bequeathed White, Nell Gay $500.00 to her sister minister-; is a Methodist record, niece, to her Lillie to enable home; Yick, $500.00 in her who lived Lillie Yick, according need.” really her “to buy thing she J. Hubbard has no children. children, has six while Samuel pleadings, did the testamentary that she not have if this knew Moreover, were made they payable bonds because him the give $6,000.00 but intended to and J. Sam Hubbard, to her on she would have added unusual that strange is rather it bonds, disproportionate bequest. large this very Hundred Dollars,” “& I fifteen Furthermore, appears, her will this statement want later Ordinarily saving graves.” dollars flowers hundred is part certain some bequest a definite and devise where made original of in a disposed part later property same necessary comply reduced to the extent only bequest devise 1128, page section Jur., Wills, in the will. Am. provision the later as to what bonds uncertainty doubt since there is some seq. But, et Hubbard, J. Samuel bequest to include in the testatrix intended savings or reference to bequest the later has to consider right court to include the bonds, question as whether to him. bequest in bonds in *11 SPRING 209 C.] Wiggins.

Hubbakd v. It is unfortunate that the court was not given any information as to the of extent the testatrix’s estate. It was entitled to such information. Often of knowledge the the extent or of character helpful estate of asceraining Williams, the intent the maker of the will. v. Herring supra; Cowen, 159 Ripley v. Armstrong, 961; 74 S.E. Adams v. N.C. 158, Hawkins, 177 U.S. 851; L. Ed. Blake v. 98 U.S. Ed. L. The testatrix after making her bequests, exclusive of those connec- tion with the of disposition proceeds the to be from derived sale of the home, her undertook to aup set trust of of consisting the residue estate, for the of purpose giving certain children a education business a cost not to $500.00 exceed of each We children. concur with ruling of the court below to the effect that attempt to establish this trust failed because its indeiiniteness illegibility writing in connection therewith. Even so, worthy it note that at time the testatrix executed had no nieces or nephews under eight- years een of age but she did have twenty-two great-nieces great- nephews seventeen years age under, none all whom, probability, had finished who high school and might become eligible benefits under such had the testatrix used trust legible language sufficient to make her intent effective. mere fact that However, the she failed in her at- tempt establish and also failed to make trust, effective for the of the flower does not prevent establishment the considera- fund, tion of on attempts question her intent. these In J., to find and seeking apply intent of a testator, Stacy, said C. Mears, in Smith v. 218 N.C. 2d 659: is this quest “It variant minds with no two testators, situated alike and the exactly necessity interpreting according the circumstances of its often results in close use, that distinctions and renders law of wills Cheek, sui Richardson generis. supra; McIver v. McKinney, S.E. 399. Yet after saying this, we assiduously pursue adjudicated cases for any gleam light that us with may help prob lem hand. Worthy ideas and on expressed occasions, other elsewhere like nuggets truth when wherever know no found, barriers time or place. It is horizon only foggy Surely that shuts them out.” testatrix’s attempt saving set aside “fifteen hundred dollars in for flowers to the is more than graves,” gleam light bearing a mere her intent obtained from other think it adjudicated clearly cases. We indicates that she bequeath $6,000.00 did not intend to J. Samuel Hubbard. all

Notwithstanding record, the facts and circumstances by the revealed appellant only contends that seriously to him bequeath cash, $100.00 all her bonds, totaling THE IN SUPREME COURT.

Hubbard from plus proceeds tbe derived borne, sale ber tbe but that sbe did so plain We unambiguous language. do not concur in tbis view.

As tbe authorities herein point out, cited in lan- construing a will tbe used in a or guage single sentence, phrase, will not be clause, permitted against to control as tbe evident intent gathered entire instru- tbe A will is not to be construed per parcella, ment. but in entirety. 57 its Wills, section et Am..Jur., 1137, page seq. our when will of testatrix opinion

In tbe is considered in its it does not reveal intent to <1.Samuel Hubbard entirety, give ap- much gave twelve times as as sbe of tbe other proximately any objects of those ber and from administering estate, ber exclusive six to bounty one of gave times as much as sbe to each them. We think pro- ten tbe ruling will tbe court below to tbe support visions tbe effect that give $300.00 intended to to J. Samuel Hubbard in tbe testatrix tbe bonds in a separate envelope, cash, plus $100.00 sbe tbe kept which him from tbe to be derived from proceeds amount tbe sale bequeathed home. ber of tbe court below is judgment Tbe

Affirmed. sbe tbe testatrix J., dissenting: among While dwelt living, tbe EbviN, Series tbe value of Savings Bonds, D, three United States purchased Hubbard, or ber Sam nephew which were to herself each, payable $100.00 of $1,000.00 Series value Savings Bonds, D, United States tbe $100.00 alone. Sbe tbe three placed which were to herself each, payable bonds in an- put $1,000.00 tbe six envelope. bonds in an unmarked Sbe account.” “personal and the bearing ber name notation envelope other tbe six bonds legal power testatrix bad tbe Tbe $100.00 tbe bonds. Under three by respect will. It was otherwise title to complete tbe three regulations, tbe Federal tbe applicable by right Sam Hubbard survivorship automatically passed bonds having him cashed without them. predeceased when tbe testatrix When sbe executed ber tbe testatrix made two references to bonds. in lines and is couched in tbis language: Tbe appears first & on Hundred Dollars.” second Hubbard is to have Tbe tbe “Sam “I way: 53 and and is tbis fifteen expressed in lines want appears for tbe graves.” Bonds flowers Tbe Savings hundred dollars Tbe Savings clause. United States residuary not contain a does tbe death of tbe envelopes testatrix, in their after enclosing were found bonds. other any did not have claim to any who for decision: Did tbe solitary question raises tbis appeal Tbe Hubbard? $1,000.00 bonds to Sam tbe six bequeath TEEM, SPEING 0.] Hxjbbaed Wiggins. look

We must to tbe will answer to tbe question. “In con- tbis tbe seeks to ascertain and struing will, court into carry effect tbe ex- i.e., testator, pressed intent tbe tbe intention wbicb tbe will itself, either explicitly declares. Where tbe implicitly, language employed import testator and its plain obvious, judicial tbe chore is light work; of tbe for, event, words testator must be taken mean exactly But tbe they say. language what where will does not ex- clearly press purpose, tbe testator’s when bis intention is obscure because tbe of inconsistent clauses or words, tbe court itself use finds confronted aby task. In such court perplexing case, tbe calls to its aid or less more of testamentary canons rules arbitrary construction designed tbe law to resolve doubts tbe tbe testator favor of inter- pretations Austin, wbicb law deems Elmore desirable.” tbe attorneys parties

Tbe all tbe tbe of tbis majority Court accept as valid tbe determination tbe presiding judge that tbe words “I want *13 hundred Savings fifteen graves” flowers to tbe are dollars no meaningless void. I have quarrel bolding. tbis ' With second testamentary reference to thus the there removed, bonds is no room virtually left construction. Tbis is true because tbe testa- trix has expressed plain language of obvious import unmistakable bequeath intention to Hubbard to Sam tbe bonds wbicb she bad over tbe power disposition. testamentary

To argued it sure, may be that tbe broad and be unrestricted words “Sam Hubbard is to have tbe bonds” are of these two susceptible con First, structions: tbe testatrix to give Sam Hubbard all “tbe is $100.00 to three bonds,” say, bonds as well six $1,000.00 as tbe Second, bonds; give tbe testatrix intended Sam Hubbard “tbe bonds” to over wbicb she bad testamentary say, is to disposition, that tbe six bonds. Her action in $1,000.00 segregating tbe bonds label ing envelope containing $1,000.00 six bonds as her “personal tbe legal account” indicates knew she bad in powers that she tbe reference to To bonds lends tbe second these constructions. support tbe point, however, belabor tbis tbe would phase appeal this angels medieval “bow undertaking query many absurd an as to debate tbe jostling can on the of a without other.” point very dance fine needle each $100.00 of tbe three legal power dispose tbe testatrix was without Since i.e., tbe same exactly legacy, bonds Sam Hubbard would receive by Alexander, Benton bonds, tbe six under either construction. $1,000.00 S.E. 2d 156 A.L.R.814. make For Court tbis When reasons, ought determination: these & on tbe Hubbard to have bonds Hundred testatrix said “Sam is tbe $100.00. him six bonds and gave $1,000.00 Dollars,” she tbe IN THE COURT. SUPREME Hubbakd v. They adjudge brethren that when testatrix said My disagree. & on him Dollars,” gave “Sam Hubbard is to have the bonds Hundred she no died moreover, but bonds. testatrix $100.00, They adjudge, as to these bonds in of her declaration that “Sam spite positive intestate Hubbard is to have the bonds.” rest on a which cannot be harmonized adjudications premise,

These will or dehors that and a instrument, with the the facts premise. which cannot be reconciled with the conclusion "When words “Sam Hubbard is to have the premise: This is the provisions other of the will “the fact light bonds” read are it bonds,” appears' at her death two sets that the that testatrix held titles to of the difference state the two ignorant testatrix was had full legal power she both of bonds believed that sets “Sam Hubbard the words is to consequence, of bonds will. As a sets two con- susceptible as to be these ambiguous the bonds” so have First, Sam Hubbard the three give : intended to structions second, give testatrix intended to Sam others; and no $100.00 bonds This must be ambiguity and no others. bonds $1,000.00 Hubbard the construction. removed “Sam Hubbard When the words have the conclusion:

This of other of the will and “the in the light are construed bonds” it that it bonds,” appears death two sets held at her fact that testatrix $100.00 Sam Hubbard the three give of the testatrix intention was the withhold from him the six and to give could bonds which she had no legal power the testatrix give. could Since which “Sam Hub- testamentary provision bonds, the three bequeath than the whis- legal significance has more bonds” no bard is to no And since the the willows. through contains tling wind controversy. bonds in the testatrix died intestate as residuary clause, *14 in final of brethren rests reasoning my in the jot every tittle Every of the difference ignorant was on their notion that the testatrix analysis she had of bonds and believed that of to two sets state her titles the the Their decision by of sets of bonds will. to both dispose full legal power found for this notion could be if validity support even would without held at death testatrix her the that of the will and fact “provisions words “Sam Hub- the incorporated the of bonds.” If testatrix two sets had full legal belief she in her will in the that bonds” bard is to have the inescap- the conclusion is of of both sets to power bonds of Hubbard both sets Sam give intended able and that unassailable she $1,000.00 him six bonds the to transfer and her will was bonds effectual supposed disposition. The testamentary power which she had the over afford an iota do not of the testatrix belief supposed and the ignorance one set of bonds from she divorce the idea that support the other. SPRING

N. 0.] Wjgsins.

Hubbard my Tbe basic notion brethren the based on it are reasoning conflict with the that presumption the testatrix knew irreconcilable had in reference to the held powers property own titles the she McNulta, 136; her. Funk v. R. Re Eggleston, Ill. Am. 57 Am. section 1163. 389; Jur., Wills, My

Wash. 12 P. brethren do in “the fact testatrix held at her death two specify anything that sets of bonds” this having anjr logical tendency presumption rebut I they to sustain their submit that cannot so. position. respectfully do on segregated bonds, envelope When she the noted contents one its to her com belonged “personal account,” making any refrained notation on the testatrix demonstrated that parable envelope, other the she the state of her to the two sets bonds knew the titles ‘difference was disposition limited to .power testamentary knew her to her account.” $1,000.00 belonging “personal assign' brethren two reasons for their assertions that their My premise conclusion And will. first is support provisions their The that Sam Hubbard would receive a .-and “very large disproportionate if words Hubbard is to have the bonds” are bequest” the-testatrix’s “Sam legal construed to him bonds which she had the to' give bequeath As unsatisfying. conjecture. to him. This reason is It rests wholly court information majority opinion out, given any “the points was not reason would -of estate.” The first be desti- as to extent the testatrix’s if it on fact. Since the law however, tute of even were based validity, do own as she' testatrix had pleased, her to permitted .with a.“very large dispropor- Sam Hubbard legal right absolute make had that the negates any theory tionate The will bequest.” objects natural of her among her property, intention to distribute gave persons She various degree equality. with bounty substantial off She cut her brothers varying values. varying gifts of her alto- bounty natural objects She disinherited some apiece. uncon- symptomatic I the first reason is simply fear that gether. of the court to which lies majority temptation succumbing scious make for a decedent temptation for judges constant wait —the judges equi- deem be more will which construction name has himself. than the will the table made .decedent brethren for their assertion that by my second reason advanced The find in the support and their conclusion premise their bonds: “I want fifteen reference to will is on this second bottomed hundred, The graves.” presid- Bonds for flowers to the Savings dollars in affirm my brethren vagueness, held' words void ing judge these meaningless clearly words indicate declare holding. Yet‘they these bonds to the six bequeath did not intend to that the testatrix *15 she assent to this reason. When give I am unable to Sam Hubbard. IN THE SUPREME 214 COURT.

Hobbabd v. her words in testatrix the privi- inserted these the exercised merely changing mind, attempted prior to withdraw from her lege Hubbard “fifteen dollars in Savings to Sam hundred bequest if graves.” precisely And is what she would have done flowers in words of 57 expressed apparent purpose legal validity. she had do reveal reason My section 1128. brethren not Jur., Wills, Am. words a which it denies to valid power law should to void give why I favor this well Consequently abiding by I think of none. ones. can an provision “A earlier gift by doctrine of the law wills: clear settled or ambiguous provi- a later obscure qualified by not be modified 69 section 1158. sion.” C.J., Wills, brethren my conclusion premise

For reasons given, dehors will or the facts harmonized with cannot be instrument. comes terms, to ultimate it majority reduced premise When the ambiguous bonds” so Hubbard is to have the The “Sam to this: words First, in- the testatrix two constructions: be these susceptible as to and no bonds, others; $100.00 Hubbard the three to give tended Sam $1,000.00 Hubbard Sam second, give intended no others. bonds, Sam Hubbard give that the testatrix

The conclusion him the six not and to withhold give she could three bonds with this premise. be reconciled cannot give could or rules of to the canons runs counter conclusion because This true nature calls alleged ambiguity which construction testamentary play. into follows: or rules are canons

These dispose property testator intended is that the presumption 1. The Misenheimer, Bank v. of will. dispose him to law permitted which Gano, 539, 239 Ill. Gano v. 1310; 110 191 S.E. A.L.R. 14, 211 519, 85 560, 235 Ill. 450; Capps, Collins v. 22 (N.S.) L.R.A. 88 N.E. 146, Wilkison, 286 130 P. v. Kan. Wilkison 232; 126 R. Am. N.E. S. Admr., Lane v. Gess’ 429; 34 S.W. 2d Nicol, 236 Ky. 779, Hood 252; v. 26 Corp., Coal Lasater v. Cumberland 1076; 2d 3 S.W. Ky. 223 Civ. singer (Tex. Pay 407; 171 S.W. Ottenhouse App. 277, Tenn. 638; 282 S.W. App.), Edds (Tex. Edds v. Civ. 714; S.W. 2d 244 App.), 1163; J.,C. Estate, Wills, section Jur., Am. supra; re McNulta’s In is that presumption true. is also The The reverse section Wills, no had over which of property he did intend the testator App.), George (Tex. Civ. Cox testamentary disposition. L.R.A. 111 Va. 325, Waggoner, Waggoner v. 326; S.W. section 1163; C.J., Wills, 644; section Wills, Jur., 54 Am. (N.S.) the construction given not to will is consequence, As a *16 215 SPRING N. 0.] Wiggins. Hubbard v. not devisable or bequeathable

the testator intended to dispose property no its other construction. by him, language fairly susceptible unless Misenheimer, Nicol, Bank v. Hood v. v. supra; supra; Long Long (Tex. 252 2d Ford v. 235; Paysinger, supra;

Civ. S.W. Ottenhouse App.), v. 630; Bachman Civ. 203 S.W. 2d Cheatham v. Mann (Tex. App.), (Tex. 264; 133 S.W. 2d Sailer v. Furche 22 App.), (Tex. App.), Civ. Civ. S.W. 2d 1065.

2. When a dies person testate, presumed it be that he intended to' of all dispose his his did so property by dispose it. he As a construction a will which consequence, any will result partial is to be intestacy avoided, unless the the will compels it. v. 235 Armstrong Armstrong, 733, 119; 71 S.E. 2d Trust N.C. Co. v. Waddell, Williams, 234 N.C. 67 S.E. 2d Renn v. 233 454, 651; 490, N.C. ones, 64 437; S.E. 2d J ones v. J 227 42 2d 424, N.C. S.E. 620; Ferguson Smith, 375, 225 35 2d Ferguson, 231; v. S.E. Holland 224 N.C. v. N.C. McWilliams, 29 2d 255, 888; S.E. McWilliams v. 223 N.C. 26 S.E. 857, 2d 901; Morris 209 183 Waggoner, v. N.C. S.E. Case Biber 353; v. 183, stein, N.C. 802 McIver 514, ; 207 177 v. 184 McKinney, 393, S.E. N.C. Middleton, 114 S.E. Faison 399; 171 N.C. 88 Ann. 170, 141, v. S.E. Cas. Ireland, Foust, 72; Ireland v. 56 Foust 46 1917E, 498; 184; N.C. v. N.C. Reeves, Latham, 365; 44 Boyd v. N.C. Reeves v. 16 N.C. 386. Every part of will is to considered in its construction, be and none

of its words to be cast as idle if any meaning aside can be jargon, put Smith, upon Rand, them. Holland supra; v. Williams 223 N.C. 734, v. Lee, 28 2d 247; S.E. Lee v. 216 N.C. 4 S.E. 2d 349, 880; Edens v. Wil liams, 7 To end, N.C. 27. this clauses con susceptible inconsistent structions are to if this reconciled, may be done. Voncannon fairly v. Co., Hudson Belk 236 N.C. 73 2d Bank v. 231 875; Brawley, S.E. Smith, Rand, N.C. 58 2d Holland 706; S.E. Williams v. supra; v. Cheek, 212 N.C. S.E. Richardson 247; N.C. 510, 705; Reynolds, S.E. 168. Westfeldt brethren conclude that the testatrix intended My dispose three her and to intestate as the six bonds bequeathable by die over which had the lan- testamentary disposition, although will is guage certainly contrary interpretations. susceptible They east aside as idle “Sam Hubbard is to jargon the testatrix’s words the bonds,” although meaning can be on those words: The testa- put trix give intended to Sam Hubbard bonds which the law permitted her to byof will. J., J., WiNBORNE, C. concur in dissent.

BaeNhill, IN THE SUPREME COURT.

Hubbakd v. J., concurring: Without elaboration the following consid- Bobbitt, erations convince me that the intent the testatrix is rightly determined decision of Court.

1. The provisions for Sam “& Hubbard: Sam Hubbard is to have the & on Hundred Dollars.” it will be Here, noted, she does not refer *17 to “all the bonds” or bonds.” In “my my “the Bonds” refers to opinion, the bonds with which “Sam Hubbard” is identified, namely, bonds her possession, presumably purchased by made out to her, Christian “Mrs. G. Mr. J. Sam Hubbard.” (Emphasis added.) Pate 2. The context: I quote only the provisions immediately preceding and hundred, immediately following: “. . . Mary Archer is to have. 2. &cash. Sam Hubbard is to have & on the Bonds Hundred & Dollars Nita H. Davis is to have 2. hundred dollars, in cash. & . . .” There is nothing suggest here to that Sam Hubbard is to be chief beneficiary estate. I The draw is inference that beneficiaries being treated these are same substantially basis.

3. addition the words: “& on The Hundred Dollars.” It seems to me altogether unreasonable to infer that the intent of testatrix was to leave Sam Hubbard S. Bonds and U. add to a bequest this “& on Hundred Dollars.” value,

4. The provision: “I want fifteen hundred dollars in Savings Bonds flowers the grave.” are not concerned with the validity We this provision. Rather, we concerned solely ascertaining intent of the testatrix. In she did my view, not think had disposed bonds she other than those with which Sam Hubbard was identified. definitely

5. The $100.00 bonds made out to three “Mrs. Christian G. Pate Mr. Sam Hubbard” were kept separate J. The envelope. $1,000.00 bonds made out Mrs. Christian Gay Pate were another envelope “Mrs. W. The marked, Pate, personal L. account.” two sets of bonds in her separated physically separated were Hav thoughts. ing $100.00 the three purchased bonds, having them in her kept possession, a separate envelope, with no of these bonds in her delivery lifetime, it clear to me that were bonds for Sam these Hubbard seems when made for him: “& provision Sam Hubbard is to have the Bonds she & on question Hundred Dollars.” True, resolving long mooted, this Frederickson, Conn, Court held in Ervin v. and Bank v. 225 N.C. 267, 2d law inter vivos applicable gifts S.E. the State otherwise was superseded by regulations concerning Federal Statutes no though delivery bonds and that the even had been alternate payee, during so, the lifetime was thereto. Even purchaser, entitled made part State law to the extent that such bonds are a prevails tax Watkins purposes. decedent estate purchaser’s inheritance Shaw, Revenue, It Comr. seems unrea- SPRING O.]

.TYACHOSKY V. WENSIL. sonable assume that Mrs. Pate was aware these refinements. She had not given $100.00 the three to Sam Hubbard her life- during time. She thought doing was so result was albeit Will, she actually accomplished by operation law under Ervin v. authority Conn, Frederickson, and Bank v. supra.

In view is short, my U. purchased three S. had made Bonds, payable them Sam Hubbard, thereby herself J. bonds for him earmarking these him with and that identifying them, had bonds and “& these these in mind when she Sam only provided: & Hubbard is to on Hundred the Bonds Dollars.” (Emphasis added.)

KAY JYACHOSKY v. L. R. WENSIL and CURTIS GARMON.

(Filed May, 1954.) d— 1. Automobiles § % *18 competent testify appearance It is witnesses to that the truck they truck, which as another saw the scene of the accident was the same identified belonging employer, shortly they to defendant which saw thereafter at place. 2. Automobiles e— § % Testimony identifying they of witnesses the truck which saw at the belonging as the scene the accident same truck identified as to defend- employer jury question, ant is sufficient to take the case on employer’s being jury defendant evidence conflict therewith for the resolve. 3. Same— proof merely provides G.S. 20-71.1does not affect the burden but proof ownership prima of a truck involved in an establishes accident being operated by employee that the was an truck that at the faeie employee acting scope employment. time the prima was within the of his Such showing respondeat superior is sufficient to take the issue of facie jury, compel finding does but affirmative thereon. 4. Evidence 7e—§ prima give The establishment of facts rise to a case sufficient faeie merely jury, credibility takes the issue to the and the of defendant’s evi- explanation dence rebuttal also their determination. respondeat superior held Automobiles issue § 24%i — Instruction without error under of G.S. 20-71.1. belonged Plaintiff offered evidence that the truck involved accident employer to defendant iind also introduced in evidence the certificate registration disclosing that license for the vehicle was issued to defendant employer employer that the as the owner. Defendant introduced evidence