Bowden v. . Lynch

91 S.E. 957, 173 N.C. 203, 1917 N.C. LEXIS 274

• Court: Supreme Court of North Carolina
• Decided: March 28, 1917
• Status: Published

Opinion

Allen, J.

It is apparent from an inspection of tbe whole will that the paramount and controlling purpose in the mind of the testator was to provide for the five children named therein and their children, and that he intended for the children and grandchildren to take in succession, and not as tenants .in common, and this general intent should prevail even against minor considerations in conflict with it if they appeared in the will. Lassiter v. Wood, 63 N. C., 360; Balsley v. Balsley, 116 N. C., 477.

It is also clear that the will was drawn by one who was not versed in technical legal rules or language, and that the terms “issue” and “lawful begotten heirs of their body” are used indiscriminately as descriptive of children. This is illustrated by the third item, in which personal property alone is disposed of, and this is given to Egbad and Edward Eouse and the “lawful begotten heirs of their body,” but if they leave “no issue,” then “to revert hack” to the children of the testator. Here we have “lawful begotten heirs” and “issue” referring to the same class, and evidently meaning children, and this construction has been placed on similar language in a number of cases. Tucker v. Moye, 115 N. C., 71; Francks v. Whitaker, 116 N. C., 518; Smith v. Lumber Co., 155 N. C., 392.

In the last case cited items in a will were considered very much like the fifth item in the will before us, and the Court said: “Construing this will in reference to these authorities and bearing in mind the well-recognized positions that as to wills the intent of the testator as ascertained from the consideration of the whole will in the light of the surrounding circumstances must govern (Holt v. Holt, 114 N. C., 241), and that as to both wills and deeds the intent as embodied in the entire instrument must prevail, and each and every part must be given effect if it can be done by fair and reasonable intendment before one clause may be construed as repugnant to or irreconcilable with another (Davis v. Frazier, 150 N. C., 447), we are of opinion that the will conveys to the children mentioned in the third item an estate in fee, defeasible on dying without leaving lawful issue of his or her body surviving, and in that event, as to either, and when it occurs, the interest passes to the surviving children or to the lawful heirs who may be surviving any of my children’; and that by these words the testator did not intend heirs in the ordinary or general meaning of the term, but surviving issue and in the sense of children and grandchildren, etc., of the devisees named, and that in case this interest should arise to them, they would .take and hold as purchasers directly from the devisor.”

In the last paragraph in the fifth item “children” must therefore be substituted in one place for “heirs lawfully begotten of their body,” and in the other for “lawful begotten heirs of their body,” and the. paragraph must be read as follows: “My will is that if any of my children before mentioned shall die without children them surviving, then and in that case the legacies herein given shall revert back to the survivor or survivors of my children and the children them surviving forever.”

Under the authorities since the case of Buchanan v. Buchanan, 99 N. 0., 308, the time of dying without children which will give rise to 'survivorship must be referred to the death of the devisee and not to the death of the testator (Harrell v. Sagan, 147 N. C., Ill; Rees v. Williams, 165 N. C., 201, and cases cited), and the question is, "Who are included in the words “children them surviving” as of the death of Nancy Pridgen?

It is presumed that every part of the will “expresses an intelligible intent, i. e., means something” (Wooten v. Hobbs, 170 N. C., 214), and this intent is not only to be “gathered from the language used, if possible” (Freeman v. Freeman, 141 N. C., 99) “but in seeking for his intention we must not pass by the language he has used. If .we do, we shall make the will and not expound it.” Alexander v. Alexander, 41 N. C., 231, approved in McCallum v. McCallum, 167 N. C., 311.

“Every part of a will is to be considered in its construction, and no words ought to be rejected if any meaning can possibly be put upon them. Every string should give its sound.” Edens v. Williams, 7 N. C., 31.

We must, then, give some meaning to the language “children them surviving”; and they are not the children of the testator because they are already provided for in the same paragraph.

Nor is reference made to children of living children of the testator, as the property is given in the same item of the will to the children of the testator absolutely,subject to be defeated only in the event of dying without children.

The only other conclusion permissible, if we give any meaning to the language of the testator, is that he intended to include the children of deceased children of the testator, and this accords with the leading-purpose of the will.

It follows, therefore, that his Honor was correct in holding that the plaintiffs, who are the children of Mary B. Hill, who died before Nancy Pridgen, are entitled to one-fourth of the land in controversy.

The children of Winnie Rouse, who died before the testator, are excluded, because Winnie Rouse is not mentioned in the will, and the de vises under tbe terms of the will are to the children of the testator named, and to the children of those deceased, “before mentioned.”

We are also of opinion that the quitclaim deed executed by the plaintiffs passed their interest to the defendant.

It purports to convey all “right, title, and interest, estate, claim and demand, both in law and equity, as well in' possession as in expectancy,” and is in all material respects like the deed which was sustained in Kornegay v. Miller, 137 N. C., 661, which has been approved on this point in Cheek v. Walker, 138 N. C., 449; Smith v. Moore, 142 N. C., 299; Beacon v. Amos, 161 N. C., 367, and is a controlling authority.

In the Kornegay case the grantor could only take in the event of’a death of .one without issue, and before the contingency happened she executed a deed, in consideration of $1 conveying “her right, title, and interest, present, contingent, and prospective,” and it was held that the grantor had a “possibility coupled with an interest” which passed by her deed, and that it operated “to vest- in the plaintiff the equitable title to all of the interest, title, and estate which she has or may, by the happening of the contingency provided for, have in the locus in quo; that this title is something more than the mere right in equity; that in the event of the plaintiff’s death without offspring the title will be perfected without any act on the part of the plaintiff or those claiming under him; that the consideration agreed upon by the parties is sufficient and adequate to pass such equitable title, and sustain it in the event the perfect title shall come to her.”

There is no error.

Affirmed.