Goode v. . Hearne

105 S.E. 5, 180 N.C. 475, 1920 N.C. LEXIS 116

Opinion

HoKE, J.

Tbe will of J. M. Goode, upon which tbe rights of these .parties depend, has been duly proven and recorded, and is in terms as follows:

“Know all men by these presents, tbat I, J. M. Goode, being of sound mind and memory, but realizing tbe uncertainty of life and tbe certainty of death, and hereby revoking all former wills by me made, do make and ordain this my last will and testament in form and substance as follows: My executor hereinafter named shall give my body decent burial, pay all my just debts, and collect all money belonging to my estate.

“2. I give and devise in fee simple to my two daughters, Mamie G-. Morris and Agnes Hearne, and to my daughter-in-law, Mamie "W. Goode, the wife of George W. Goode, share and share alike, all my real estate wherever situated, and it is my will that the children of my daughter-in-law, Mamie W. Goode, by her husband, George W. Goode, shall, in the event of their mother’s death, inherit her share of the estate.

“3. I give and bequeath all my household and kitchen furniture to* Mamie G. Morris and Agnes Hearne.

“4. It' is my will that all the rest and remainder of my property, real, personal, or mixed, including all cash money, be equally divided between my two daughters,. Mamie G. Morris and Agnes Hearne, and my daughter-in-law, Mamie "W". Goode, and that' if they, the children of my daughter-in-law, survive her, they shall inherit her share of my said property, as provided in section 2 of this my last will and testament.

“5. My city property not to be sold in two years from the date of my death. (Signed) J. M. Goode.”

It is the approved position here and elsewhere, in the construction of wills, that unless in violation of law the intent of the testator, as expressed in the will, shall prevail, and in ascertaining this intent the entire will shall be considered, giving to each and every part significance and harmonizing apparent inconsistencies where this can be done by fair and’ reasonable interpretation, and that the language of the instrument shall be given its natural and customary meaning unless it clearly appears-that some other permissible meaning is intended. The decided cases with us are to the effect also that where a defeasible estate is conferred by will with no definite time fixed for the same to become absolute, the time of the testator’s death will be adopted unless it appears from the terms-of the will that some intervening time is indicated between such death and that of the first taker, and further, in determining" this matter and in case of ambiguity, the courts are inclined to regard the first taker-as the primary object of the testator’s bounty, and will lean to the interpretation that tends to'promote the early vesting of estates. In the-comparatively recent ease of Bank v. Murray, 175 N. C., pp. 62-65, some of the rulings referred to are stated as follows:

“Subject to the position that the intent and purpose of the testator as expressed in his will shall always prevail except when the same is in violation of law, it is a recognized rule of interpretation with us that when an estate by will is limited over on a contingency and no time is-fixed for the contingency to occur, the time ,of the testator’s death will. be adopted unless it appears from the terms of the will that some inter-wening time is indicated between such death and that of the first taker, .and to the same general effect are Whitfield v. Douglas, 175 N. C., 46; Bell v. Keesler, 175 N. C., 526; Bank v. Johnson, 168 N. C., 304; Dunn v. Hines, 164 N. C., 113; Galloway v. Carter, 100 N. C., 111; Price v. Johnson, 90 N. C., 593, and other numerous cases. Considering the terms of the will in view of these authorities and the rules of interpretation they approve and illustrate, in the second clause of the will, being the one more directly applicable to the real estate, the plaintiff, Mamie "W. Goode, daughter-in-law, and the testator’s two daughters, in express terms are given the real estate fin fee simple, share and share alike/ and the will, then, provides that in the event of the mother’s death the ■children of the daughter-in-law by the son shall inherit their mother’s share of the testator’s estate.” No time being fixed when the contingency is to occur, and adopting the death of the testator as the time the estate devised to the mother, she being then alive, • became absolute at that date, and the children have no further proprietary interest — a position that is not only in accord with the authorities cited and others of like kind, but in our opinion is fully confirmed by the language of the limitation itself, which clearly contemplates that these children, if they come into the ownership of the property at all under the will, shall do .so as inheritors from the testator. In the fourth clause, disposing of the personal and other property, after bequeathing the same, to the daughter-in-law and the two daughters, there is language in the limitation which might justify the interpretation that the mother took a life interest with remainder to the children, the terms being that if these ■children “survive the mother, they shall inherit her share of the estate,” but as applied to provisions in section 2 of the will, such an interpretation would not only be to ignore the positive devise of a fee simple, .appearing in that section, but is in contravention to the last clause of this section 4, to the effect that if these children survive their mother '“they shall inkeifit her share of my said property, as provided in section 2 ■of this my last will and testament.” The testator here, by express declaration, makes this clause two the controlling provision, and the limitation over, “if the children survive the mother,” by correct construction refers to a survival by death occurring during the life of the testator. In estates of this kind, where the devise over is on the death ■of the first taker without “heir or heirs of the body, or without issue or issues of the body,” etc., a statute, with us, Rev., 1581, provides that such .a limitation shall be held and construed to take effect when such a person shall die, not having such heir or issue, etc., living at the time of his •death, or born within ten luna months thereafter, unless the intention be otherwise and expressly and plainly disclosed in the face of the deed or will creating it. Under this statute, and authoritative decisions construing the same, Patterson v. McCormick, 177 N. C., 448; Kirkman v. Smith, 175 N. C., 579, and others, some of the earlier cases discussing the general principles of interpretation to which we have adverted, have been changed or very much modified, but their application is unaffected where, as in this case, the devise does not come under the purport and meaning of the statute, and where, in any event, as we have endeavored to show, it clearly and plainly appears to be the intent of the testator on the face of the will that the estate of the first taker shall become absolute at his death. In Rees v. Williams, 165 N. C., 201; S. c., 164 N. C., 128, cited for appellant, there were terms in the devise which served to bring that case within the effect and operation of the statute referred to, and there were also special terms in the will, much relied upon in the opinion, and which tended to show that the testatrix did not intend that the estate should become vested at her death. On the record, we are of opinion that the will in question has been correctly construed, and the judgment of the Superior Court is

Affirmed.