Dunn v. . Hines

80 S.E. 410, 164 N.C. 113, 1913 N.C. LEXIS 18

Opinion

Waukeb, J.,

after stating the case: The question turns upon the -point as to what meaning we will give to the words of the settlement, “without marriage and children of the age of 21 • years or bodily heirs of such children,” for there is an ulterior or alternative limitation in the form of an executory devise, to the testator’s son, William B. Isler, and should those words be construed to mean that if Carrie E. Isler (now Mrs. Dunn) dies a widow and without leaving children, the estate could not vest absolutely in any one until her death,, but would remain contingent until that event takes place. But we do not think this can possibly be the meaning, in view of the context of the . will.

The main purpose in construing a will, where there is doubt or ambiguity, is to ascertain the true intent and meaning o’f the testator, and in doing so we must be governed by the rules of law established for the purpose; otherwise, we would be in no better case than if traversing an unknown sea without rudder or compass, and in each particular case tbe court deciding it would be a law unto itself, without anything reliable or stable to guide it. One of those rules is, that ■ we must look at the whole will, so-as to take a broad and comprehensive view of it, and not a narrow or partial one, which would so restrict its meaning as to defeat the clear intention. Underhill on Wills, sec. 464. There is a cardinal rule, also, that the heir should not be disinherited except by express devise or by one arising from necessary implication, by which the property is given to another, though the right of the testator to omit the heir from his will is not to be denied or curtailed. Ibid., sec. 466. There are other rules of more or less importance. Applying those we have mentioned to this will, what is the result?

The principal objects of this testator’s bounty in this devise were undoubtedly his wife, his daughter, and her descendants. His primary intention clearly was that the land should go to his daughter and her children after his widow’s death. How will we best execute this dominant purpose? Surely not by holding that.the quoted words mean the death of his daughter without then having a husband and children,' for the happening of such an event would carry the estate to his son, who gets his share under another clause of the will, and might leave others who would have been the testator’s descendants and lineal heirs and equally entitled to his bounty, reduced to penury and to become objects of charity. This, if not absurd, would be contrary to all rules of humanity and to those common instincts of love and affection which ordinarily control our actions. Not that a testator is required to be a humanitarian, but that he is supposed to be influenced by natural motives, and he was, because the manifestly leading idea of the will is equality among his children and their descendants. This testator has done what we would expect of him under his surroundings and circumstances. His evident intention was to prefer'his daughter and her children to his son, for whom he had already provided, and therefore in the first limitation he declared that if his daughter Carrie should marry and have children, who attained to the age of 21 years, then she and. ber living children and the children of any deceased child should have a fee simple in the land absolutely. What does this mean ? What else can it mean than that the estate is to vest absolutely in fee,, in the lifetime of his daughter, when she married and had such children, for he says, in so many words, it shall “then” vest. The limitation over was clearly intended to refer to- the nonhappening of the very same event, which is, that at her death, if she should not have been married and should not have had children, so that the estate had not already vested absolutely, then and in that case it should go over to his son. What reason can be assigned for his changing the nature of the event? If the first one named had happened, whereby the estate had vested, why should he wish to nullify this provision by substituting another and very different one? 'He may do so-; but has he done so? is the question. We think not,. But we are not confined' to' mere reasoning against such a probability, for the authorities are strongly with us in our view.

A limitation expressed in the same words was before-the Court of. Chancery of England in 1861 for construction, in the case of Heywood v. Heywood, 30 L. J. Equity, 155, where it was held,, Sir J ohn Bomilly, Master of the Rolls, delivering the opinion, “that, a gift over, in the event of daughters dying unmarried, meant 'without. ever having married,’ and that the superadded words, 'and without issue,’ meant 'without ever having any issue,’ and the event having happened, the interests had. vested, and the children, on whose behalf appointment had been made, were entitled to the fund.” But it must not be understood that these.words, “unmarried” or “without marriage” and “without children,” have this inflexible meaning. On the contrary, they must be construed with the context and as a part of it, in the light of all the words of the gift and according to the obvious intention of the party using them. “The word 'unmarried’ (and any equivalent expression, of course) is a flexible term,, and the meaning is to be ascertained, not by any strict rule applied to the term itself, but according to the sense of it where the word is used.” Maughan v. Vincent, 9 L. J. (1840-41) Equity, 329 (opinion by Lord Cottenham). These words were there given the other meaning, that is, “a dying not then being in a state of marriage,” because to give it the ordinary meaning of never having been married would exclude the heir in favor of the ulterior devise, who was the husband. It was held, though, in Mertens v. Walley (sub. nom. In re Sergeant), L. R. 26, ch. 575, decided in 1884: “Although the word’ ‘unmarried’ is one of flexible meaning, and may mean either ‘never having been married’ or ‘not having a husband,’ at the time when a gift is to take effect, the former is the primary or natural meaning, and in the absence of any context showing a-different intention,, the word will be so construed.” The word “unmarried,” or its equivalent, was also held, in Dalrymple v. Hall, L. R. 16, Ch. (1880-81), p. 715, to mean “never having been married,” according to the ordinary and primary sense of the term, and in the absence of - context showing a contrary intention, “and the gift to the children of testator’s brother, therefore, did not take effect.” See Underhill on Wills, sec. 478. The authorities show that the courts have been influenced largely by the particular circumstances of the case and the terms in which the intention of the- testator is 'expressed. Further reference may, therefore, be made to. those cases as indicating a clear drift of sentiment towards our conclusion, although in some of them the other meaning was given to the words,, because of qualifying words, such as “a dying without being married or leaving children.” Maberly v. Strode, 3 Vesey, Jr., 450 (30 English Reports, Full Reprint), Ch., p. 1100; In re Norman’s Trust, 3 De G., McN. and G., star p. 965; Bell v. Phyn, 7 Vesey, Jr., 453; Wilson v. Bayly, 3 Brown H. of L., 195 (1 Eng. Rep., Full Reprint, p. 1265).

In Pinbury v. Elkin, 1 Peere Wms., 564 (24 Eng. Reports, 518), the Lord Chancellor (Parker) said the words “dying without issue” had several senses. Our case falls under the second of these, which is:

“Second. Another sense of dying without issue was, if the party died without ever having had issue, and that was the sense put upon these words in the case of Brett v. Pildridge, cited in 1 Sid., 102, and in 1 Keb., 248, 462, where a man gaye a portion with Ms daughter in marriage, and the husband covenanted with the father-in-law to repay him £500 part of the portion, if the daughter should die without issue within two years after the marriage; the daughter had issue within two' years, but she, and afterwards her issue, died without issue within the two •years; and the case coming on in chancery was referred -to the opinion of four judges, who all held that the father should not have any of the portion back again, in regard there once had been an issue of the marriage. Bell v. Phyn, 7 Ves., 453.”

We need not stop’ to consider whether the word “and” in the phrase, “should die without marriage and children,” should be construed as a copulative or disjunctive conjunction, as in Bell v. Phyn, supra, for here both events have taken place, as the daughter, Carrie F. Isler, was married and had children, one of whom has attained to full age.

But there are other important rules of interpretation that should be applied to ascertain the real intention. The first taker in a will is presumably the favorite of the testator. Rowalt v. Ulrich, 23 Pa., 388; Appeal by McFarland, 37 ibid., 300, and in doubtful cases the gift is to be construed so as to make it as effectual to him as possible or as the language will warrant. Wilson v. McKeethan, 53 ibid., 79. And, too, the law favors the early vesting of an estate, to the end that property may be kept in the channels of commerce. Underhill on Wills, sec. 861; Hilliard v. Kearney, 45 N. C., 221; Galloway v. Carter, 100 N. C., 111, and cases there cited. “No future or executory limitation will be regarded as contingent which may, consistently with the intention of the testator gathered from the whole will, be deemed vested.” Underhill on Wills, sec. 861.

If we construe this will according to these rules, we find that the testator favored his daughter and her cMldren in preference to Ms son, as to particular property, and Ms first solicitation was for them and their interests. He therefore provided for an early vesting of their interests, when his daughter should marry and have children, and as soon as they (meaning, of course, one or more of tbem) should, become' of full age. These two events happened, and the limitation over is made to- depend not upon the situation at her death, whether married or a widow, or then having children, but upon the prior happening of the two contingent events. If we should hold that there must be children of age at the death of their mother, it would altogether exclude them from the testator’s bounty, if those left were under age at that time, in favor of his son, William B. Isler, who had already been fully provided for in other parts of the will. These facts show conclusively that the testator intended that the estate should absolutely vest in his daughter and her children as soon as there was a child of full age. This interpretation agrees with the rales, that there should be an early vesting of the estate; that the testator is not presumed to intend a disinheritance of a part of his heirs, the first objects of his bounty,, by a contingent limitation, especially in favor of another, for whom, it seems, • ample provision is made by the will. This is most in accordance with the intention, to be collected from the whole will, and is evidently what the testator really meant. It was the failure of the particular events described in the first limitation that was to render effectual the second or ulterior one. It was held in Chrystie v. Phyfe, 19 N. Y., 351, “that terms used in making a mere substitutional disposition of an estate should not be applied so as to alter what is before clearly expressed in reference to the same matter.”

The persons interested in this vested estate have been made parties. If there were any contingent interests among those first designated as beneficiaries, excluding the ulterior devisees, the sale under the judicial proceeding would pass a good title, under the doctrine of class representation and the acts of 1903, ch. 99; Revisal, secs. 1590, 1591. Springs v. Scott, 132 N. C., 563; Anderson v. Wilkins, 142 N. C., 159; Trust Co. v. Nicholson, 162 N. C., 257.

We conclude that the judgment was correct and that the defendants must comply with the same.

Affirmed.