BARNHILL, J., dissenting.
This is an action begun as a special proceeding before the Clerk of the Superior Court of Wake County, for the sale of lands for partition.
Mrs. Dorcas Sealey and husband, Wade Sealey, Mrs. Estelle Richards and husband, D. E. Richards, Mrs. Otelia Ferrell and husband, W. R. Ferrell, and Mrs. Metta Straughn, were allowed to intervene and file pleadings.
The interveners allege that the devise of lands to Martha Virginia Paschal, under the will of Thomas Wesley House, was a devise in fee
simple and that upon her death, the title to the lands vested in her heirs at law and next of kin.
Thomas Wesley House died leaving a last will and testament, which was duly probated in Wake County. He devised all his lands to his wife Louisa Jane House, for life; then to his children in the manner set forth in Item Five of his will, which reads as follows:
"ITEM FIVE. — At the death of my wife, the land hereinafter described of which I may die seized and possessed, shall be divided among my living children, and if one of them is dead, leaving children then these children shall have the share of their parent. My daughters, to-wit: Dorcas Anne Ceily, wife of Wade Ceily, Martha Virginia Paschal, wife of Edward Paschal, Otelia Sunshine Ferrell, wife of Walter Ferrell, at the death of their mother shall have their shares of the land herein bounded and described in fee simple forever. My sons, to-wit: Nimfus Green, Ezra Lyman and Harper Hillman shall each have their share of the land in fee simple forever. And if either one of my daughters shall die without issue, their share of the land shall be equally divided among these three of my sons (sic).
"My daughter, Meta Mason Straughan, wife of Elias Straughan, shall have use of the land hereinafter given to her, and all the rents and profits arising therefrom, so long as she may live, and at her death, the same shall be equally divided among her children and held by them in fee simple forever."
Item Seven of the will describes by metes and bounds the lands devised to each of the devisees; a tract of 41 1/3 acres having been devised to Martha Virginia Paschal.
The life tenant is dead, and upon her death the devisees named in Item Five, went into possession of the respective tracts of land designated for them in Item Seven of the will.
Martha Virginia Paschal died intestate and without issue, in June 1948.
This cause came on for hearing below, and his Honor held that the devise to Martha Virginia Paschal in fee, was not absolute, but defeasible upon her death without issue, and that upon her death without issue, the title to the said 41 1/3 acres of land became vested in Nymphus Green House, Ezra Lyman House and Harper Hillman House, as provided in said will.
The interveners excepted to this ruling and appealed, assigning error.
The paramount aim in the interpretation of a will is to ascertain, if possible, the intent of the testator, considering the instrument as a whole, and to give effect to such intent, unless contrary to some rule of law or at variance with public policy. Williams v. Rand,223 N.C. 734, 28 S.E.2d 247; Culbreth v. Caison, 220 N.C. 717,18 S.E.2d 136; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Heyer v. Bulluck,210 N.C. 321, 186 S.E. 356. And, it is permissible, in order to effectuate or ascertain a testator's intention, for the Court to transpose words, phrases, or clauses. Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff, 195 N.C. 624, 143 S.E. 210; Gordon v. Ehringhaus, 190 N.C. 147, 129 S.E. 187; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Baker v. Pender,50 N.C. 351.
Also, generally speaking, when a will is sufficiently ambiguous to permit construction, the courts favor the early vesting of estates, and the first taker of an estate by will is ordinarily to be considered as the primary object of the testator's bounty. Weil v. Weil, 212 N.C. 764,194 S.E. 462; Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Goode v. Hearne, 180 N.C. 475, 105 S.E. 5; Bank v. Murray, 175 N.C. 62, 94 S.E. 665; Whitfield v. Douglas, 174 N.C. 46, 94 S.E. 667.
The real question, therefore, submitted for our decision on this appeal, is simply this: Did the testator devise to his daughter, Martha Virginia Paschal, an estate in fee simple, or a defeasible fee?
The appellants contend that it was the intent of the devisor to devise the lands described by metes and bounds in Item Seven of his will, in fee simple to his three daughters, Dorcas Anne Sealey, wife of Wade Sealey, Martha Virginia Paschal, wife of Edward Paschal, and Otelia Sunshine Ferrell, wife of Walter Ferrell, should they survive their mother, the life tenant; and, that it was only in the event of the death of either one or more of the designated daughters without issue, prior to the death of the life tenant, that the testator intended for the share of such deceased daughter to be equally divided among the three sons, citing Whitley v. McIver, 220 N.C. 435, 17 S.E.2d 457.
On the other hand, the appellees contend that the "dying without issue" is referable to the death of the first taker of the fee and not to the death of the life tenant. G.S. 41-4; Patterson v. McCormick, 177 N.C. 448,99 S.E. 401; Rees v. Williams, 165 N.C. 201, 81 S.E. 286; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Dawson v. Ennett, 151 N.C. 543,66 S.E. 566; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435; Galloway v. Carter, 100 N.C. 111, 5 S.E. 4; Buchanan v. Buchanan, 99 N.C. 308.
This appeal turns largely upon the construction given as to the time the testator intended these words in Item Five of his will, to be applicable: "And if either one of my daughters shall die without issue, their
share of the land shall be equally divided among these three of my sons." In the absence of a plainly expressed intention to the contrary, appearing in the will, the above words must be construed in the light of the Act of 1827, now G.S. 41-4
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BARNHILL, J., dissenting.
This is an action begun as a special proceeding before the Clerk of the Superior Court of Wake County, for the sale of lands for partition.
Mrs. Dorcas Sealey and husband, Wade Sealey, Mrs. Estelle Richards and husband, D. E. Richards, Mrs. Otelia Ferrell and husband, W. R. Ferrell, and Mrs. Metta Straughn, were allowed to intervene and file pleadings.
The interveners allege that the devise of lands to Martha Virginia Paschal, under the will of Thomas Wesley House, was a devise in fee
simple and that upon her death, the title to the lands vested in her heirs at law and next of kin.
Thomas Wesley House died leaving a last will and testament, which was duly probated in Wake County. He devised all his lands to his wife Louisa Jane House, for life; then to his children in the manner set forth in Item Five of his will, which reads as follows:
"ITEM FIVE. — At the death of my wife, the land hereinafter described of which I may die seized and possessed, shall be divided among my living children, and if one of them is dead, leaving children then these children shall have the share of their parent. My daughters, to-wit: Dorcas Anne Ceily, wife of Wade Ceily, Martha Virginia Paschal, wife of Edward Paschal, Otelia Sunshine Ferrell, wife of Walter Ferrell, at the death of their mother shall have their shares of the land herein bounded and described in fee simple forever. My sons, to-wit: Nimfus Green, Ezra Lyman and Harper Hillman shall each have their share of the land in fee simple forever. And if either one of my daughters shall die without issue, their share of the land shall be equally divided among these three of my sons (sic).
"My daughter, Meta Mason Straughan, wife of Elias Straughan, shall have use of the land hereinafter given to her, and all the rents and profits arising therefrom, so long as she may live, and at her death, the same shall be equally divided among her children and held by them in fee simple forever."
Item Seven of the will describes by metes and bounds the lands devised to each of the devisees; a tract of 41 1/3 acres having been devised to Martha Virginia Paschal.
The life tenant is dead, and upon her death the devisees named in Item Five, went into possession of the respective tracts of land designated for them in Item Seven of the will.
Martha Virginia Paschal died intestate and without issue, in June 1948.
This cause came on for hearing below, and his Honor held that the devise to Martha Virginia Paschal in fee, was not absolute, but defeasible upon her death without issue, and that upon her death without issue, the title to the said 41 1/3 acres of land became vested in Nymphus Green House, Ezra Lyman House and Harper Hillman House, as provided in said will.
The interveners excepted to this ruling and appealed, assigning error.
The paramount aim in the interpretation of a will is to ascertain, if possible, the intent of the testator, considering the instrument as a whole, and to give effect to such intent, unless contrary to some rule of law or at variance with public policy. Williams v. Rand,223 N.C. 734, 28 S.E.2d 247; Culbreth v. Caison, 220 N.C. 717,18 S.E.2d 136; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Heyer v. Bulluck,210 N.C. 321, 186 S.E. 356. And, it is permissible, in order to effectuate or ascertain a testator's intention, for the Court to transpose words, phrases, or clauses. Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff, 195 N.C. 624, 143 S.E. 210; Gordon v. Ehringhaus, 190 N.C. 147, 129 S.E. 187; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Baker v. Pender,50 N.C. 351.
Also, generally speaking, when a will is sufficiently ambiguous to permit construction, the courts favor the early vesting of estates, and the first taker of an estate by will is ordinarily to be considered as the primary object of the testator's bounty. Weil v. Weil, 212 N.C. 764,194 S.E. 462; Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Goode v. Hearne, 180 N.C. 475, 105 S.E. 5; Bank v. Murray, 175 N.C. 62, 94 S.E. 665; Whitfield v. Douglas, 174 N.C. 46, 94 S.E. 667.
The real question, therefore, submitted for our decision on this appeal, is simply this: Did the testator devise to his daughter, Martha Virginia Paschal, an estate in fee simple, or a defeasible fee?
The appellants contend that it was the intent of the devisor to devise the lands described by metes and bounds in Item Seven of his will, in fee simple to his three daughters, Dorcas Anne Sealey, wife of Wade Sealey, Martha Virginia Paschal, wife of Edward Paschal, and Otelia Sunshine Ferrell, wife of Walter Ferrell, should they survive their mother, the life tenant; and, that it was only in the event of the death of either one or more of the designated daughters without issue, prior to the death of the life tenant, that the testator intended for the share of such deceased daughter to be equally divided among the three sons, citing Whitley v. McIver, 220 N.C. 435, 17 S.E.2d 457.
On the other hand, the appellees contend that the "dying without issue" is referable to the death of the first taker of the fee and not to the death of the life tenant. G.S. 41-4; Patterson v. McCormick, 177 N.C. 448,99 S.E. 401; Rees v. Williams, 165 N.C. 201, 81 S.E. 286; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Dawson v. Ennett, 151 N.C. 543,66 S.E. 566; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435; Galloway v. Carter, 100 N.C. 111, 5 S.E. 4; Buchanan v. Buchanan, 99 N.C. 308.
This appeal turns largely upon the construction given as to the time the testator intended these words in Item Five of his will, to be applicable: "And if either one of my daughters shall die without issue, their
share of the land shall be equally divided among these three of my sons." In the absence of a plainly expressed intention to the contrary, appearing in the will, the above words must be construed in the light of the Act of 1827, now G.S. 41-4, which reads as follows: "Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it: Provided, that the rule of construction contained in this section shall not extend to any deed or will made and executed before the fifteenth of January, one thousand eight hundred and twenty-eight."
Many of our early decisions, decided before the Act of 1827, now G.S.41-4, as well as later cases construing deeds and wills executed prior to its enactment, support the contention of the appellants. See Rice v. Saterwhite, 21 N.C. 69; Brown v. Brown, 25 N.C. 134; Hilliard v. Kearney45 N.C. 221; Gibson v. Gibson, 49 N.C. 425, and other cases cited and discussed by Clark, C.J., in Patterson v. McCormick, supra.
In this latter case the testator devised the property in question to his mother for life and disposed of the fee in the following language: "After the death of my mother I will and bequeath the plantation above mentioned to my nephews, John D. and Clem Jowers, to be divided equally between them. In case they or either of them die without issue, it is my will that the property herein bequeathed shall go to the heirs of Archibald and Gilbert Patterson and to the surviving brother John D. or Clem Jowers, as the case may be, to be equally divided between them." The life tenant died and the nephews went into possession of the property. Thereafter, John D. died without leaving issue surviving him. Therefore, the facts raised the identical question of construction that is presented on this appeal; and the heirs of John D. Jowers took the position that since he survived the life tenant, he took the property in fee simple; but the Court held otherwise, and said: "The act of 1827 has been construed by this Court at least twenty-six times, beginning with Tillman v. Sinclair,23 N.C. 183 (decided in 1840), and ending with Kirkman v. Smith,175 N.C. 579, and in every case in which it has come before the Court for construction it has uniformly been held that `Dying without heirs or issue,' upon which a limitation over takes effect, is referable to the death of the first taker of the fee without issue living at the time of his death, and not to the death of any other person or to any intermediate period,"
citing the twenty-six cases. See also these additional cases, which are in accord with the above opinion: Ex parte Rees 180 N.C. 192,104 S.E. 358; Willis v. Trust Co., 183 N.C. 267, 111 S.E. 163; Ziegler v. Love 185 N.C. 40, 115 S.E. 824; Vinson v. Gardner, 185 N.C. 193, 116 S.E. 412; Amer. Yarn Co. v. Dewstoe, 192 N.C. 121, 133 S.E. 407; Henderson v. Power Co., 200 N.C. 443, 157 S.E. 425; Turpin v. Jarrett, 226 N.C. 135, 37 S.E.2d 124.
In the case of Rees v. Williams, supra, the testatrix devised to her daughter, Jennie Lee, a house and lot. If she had added nothing further, the devise would have been in fee simple. However, in another item of her will, she inserted this language: "In case my daughter Jennie Lee shall die leaving issue surviving her, then to such issue and their heirs forever; but if my said daughter Jennie Lee shall die without issue surviving her, then I desire said property to return to my eldest daughter May Lee Schlesinger, and to my son, Harry Lee, to be equally divided between them, or to their heirs, share and share alike." On the appeal it was insisted that the dying of Jennie Lee without issue surviving was intended to mean "dying without issue surviving in the lifetime of her mother, the testatrix." The Court cited with approval the following statement from 1 Underhill on Wills, Sec. 348: "The rule which construes death without issue to mean death without issue prior to that of the testator is not favored by the courts. . . . In such a case, particularly where at the date of the execution of the will any of the primary devisees are unmarried, it may be fairly presumed that the testator had in contemplation a future marriage and birth of issue, and that, intending to keep the property in his family, he meant a death without issue to take place after his death. If, therefore, the primary devisees survive him, they take an estate in fee which is defeasible by their subsequent death without issue." The Court said further, in connection with the contention that "dying without issue" meant "dying without issue in the lifetime of the testatrix": "In order to sustain such construction, we must interpolate words by adding to those in the will, that is `dying with or without issue' the following, `in my lifetime,' instead of adopting the natural meaning, which her own language conveys and which does not so limit the devise."
Also, in Galloway v. Carter, supra, the testator devised to his wife certain lands for life and then devised separate tracts of land in fee simple to each of his four sons and three daughters. Thereafter, he inserted the following: "My will further is, that if any, or either of my children, should die without leaving issue at his, or their death, the share or shares of him, or them, so dying (as well the accruing as the original share), shall be, go over and remain to the surviving brothers and sisters, and the child or children of such of them as may be then dead, equally to
be divided between them, share and share alike; but the children of my deceased child shall, in such case, represent their parents, respectively, and take in families." One of the daughters died without leaving issue. It was contended that the testator intended that "dying without issue" should have application and operative effect only in case one or more of his children died in his lifetime, after the execution of his will; and that his daughter Mary, having survived him, took her devise in fee simple. The Court did not concur in this contention, but said: "It will be observed, that the testator first makes provision for his wife, and then for his children, severally, and in order, giving each in severalty, certain lands in fee, besides slaves and other personal property. . . . Now, in our judgment, the testator of the will under consideration, intended . . . to render the estate and title of the property devised and bequeathed to his several children, defeasible, and to provide that, in case anyone or more of them should die at any time after the death of the testator, without leaving issue living, at his, her or their death, respectively, the property so devised and bequeathed including any that might have accrued under the clause, should at once, upon his, her or their deaths respectively, at any time, go over to, and become the property of, the surviving brothers and sisters, and the child or children of such of them as may then be dead, equally to be divided among them, share and share alike, the children of any deceased child representing their parents respectively, and taking as families."
And in the case of Buchanan v. Buchanan, supra, the testator devised to his son Richmond all the remaining part of his property not otherwise disposed of in his will, but added, "should Richmond die without bodily heir, it is my will and desire that my son Andrew should have it all." Richmond died after the death of Andrew, and without issue. It was contended that since Richmond survived the testator, he took a fee simple title to the devised lands. The Court, as in the case of Galloway v. Carter, supra, did not sustain the contention, but said: "Unless, then, the gift be to two tenants in common, with a clause of survivorship, which, for the forcible reasons given in Hilliard v. Kearney, confines the limitation over to a death occurring in the testator's lifetime, or there is an intent apparent in the will or inferable from its other provisions, to restrict the contingent event to the testator's life, we see no sufficient reasons for qualifying the words `dying without issue,' by adding what he does not say, that the `dying' must be before he dies himself. . . . The testator, in the will before us, limits the property to one son upon the death of the other without issue, and with no other qualifying restrictions. How then, by construction, can such a restriction as requires the death to occur before the death of the testator be introduced into the clause and it be made to speak what the testator has not said?"
Now, let us examine the will of the testator in the light of G.S. 41-4, and the cited cases. All the land involved was devised to his wife for life. Then he said, "At the death of my wife, the land hereinafter described of which I may die seized and possessed, shall be divided among my living children, and if one of them is dead, leaving children then their children shall have the share of their parent."
In Item Six of the will the testator said, "I have had all my land except the lots in Knightdale . . . mapped and platted by . . . County Surveyor, which map I have caused to be recorded in the Book of Maps in Wake County, and for the description and boundaries of the land herein devised, I make and constitute this map a part of this my last will and testament."
In the Eighth Item of his will, the testator devised the lots in Knightdale to his sons, Nymphus Green House, Ezra Lyman House, and Harper Hillman House, in fee simple, with a further statement that "they may divide said lots equally among themselves or, if they desire, they may sell said lots to the highest bidder or at private sale and divide the money equally among themselves."
The testator divided his other land among his nine living children and set out each tract in Item Seven of his will, and follows the description of each tract with the following statement: "I give this tract of land to my (naming a son or daughter) as provided in Item Five as hereinbefore set out."
An examination of Item Five of the will discloses that the only part thereof that refers to all nine of his living children is the first sentence therein. It appears from the will that four of the testator's five daughters were married at the time of its execution, and that one son, James Rufus House, and the one unmarried daughter, now Mrs. Louis Estelle Richards, wife of D. E. Richards, were not mentioned by name in Item Five of the will.
Therefore, if we adopt the appellants' view in this case, we must find that the testator intended to make the fee defeasible only during the life of the life tenant, and then only as to his daughters. In this connection, it is important to note that the question of survivorship is not involved in the respective devises contained in Item Seven and the first part of Item Five of the will. The land is not devised to his nine children as tenants in common, to be divided among those surviving at the death of the testator or the life tenant. The land was divided by the testator, described by metes and bounds, and eight of his nine children were given his or her share in severalty, and in fee simple, subject only to the life estate of the testator's widow. The other one was given a life estate with remainder to her children. Then he proceeded to insert the controversial part of his will: "My daughters, to wit: Dorcas Anne Sealey, wife of
Wade Sealey, Martha Virginia Paschal, wife of Edward Paschal, Otelia Sunshine Ferrell, wife of Walter Ferrell, on the death of their mother shall have their shares of the land herein bounded and described in fee simple forever"; and added a similar statement as to three of his sons. He then added the following sentence: "And if either one of my daughters shall die without issue, their share of the land shall be equally divided among these three sons." It would seem reasonable to infer from the testator's will as a whole, that it was his intent to give the three daughters named above, as well as his unmarried daughter, a fee simple title forever, unless they died without issue. But we think it is equally clear that he intended the fee to be defeasible upon the death of any or either of these daughters, without issue, regardless of the time of their death. Moreover, we think the language used in connection with the death of the wife is significant. "At the death of my wife, the land . . . shall be divided among my living children, and if one is dead, leaving children then these children shall have the share of their parent." But he did not say, "if one of them is dead without children, their share shall go to thus and so." But, on the contrary, after reaffirming the character of the estate devised to six of his nine children, which he intended for them to have and possess at the death of their mother, he then added, "And if either one of my daughters (which would include all five of his daughters) shall die without issue, their share of the land shall be equally divided among these three of my sons." We think it is clear that the testator intended that none of his daughters should have an indefeasible fee in the devised property. apparently he intended to keep the devised tracts of land in his family. Rees v. Williams, supra. For it is apparent that one daughter had children at the time of the execution of the will, and the testator limited her estate to one for life and devised the remainder to her children.
Furthermore, it was provided in Item Seven of the will, that if the husband of Martha Virginia Paschal, did not make full settlement with the testator of all their business transactions before his death, then the devise to her would be null and void; and her share was to be sold and divided among all his children.
Doubtless the testator felt that the discrimination made against his five daughters, in favor of three of his sons, might result in litigation. Therefore, about two years after the execution of his will, he added a codicil, as follows: "If one or more of the devisees under my will above mentioned, shall bring suit to break and set aside my last will and testament, or any portion thereof, I revoke any gift and devise which I may have made to such devisee or devisees in my said last will and testament, and direct that such devisee or devisees shall not take anything whatsoever under my said last will and testament, and the same shall be equally
divided among those devisees who do not bring suit to break and set aside my said last will and testament."
Construing the will as a whole, in light of the provisions of G.S. 41-4
and the cited authorities, leads us to the conclusion that Martha Virginia Paschal took the property in controversy, in fee, defeasible upon her dying without issue before or after the death of the life tenant, and we so hold. Henderson v. Power Co., supra; Patterson v. McCormick supra; Kirkman v. Smith, 175 N.C. 579, 96 S.E. 51; Rees v. Williams, supra; Perrett v. Bird, supra; Harrell v. Hagan, 147 N.C. 111,60 S.E. 909; Buchanan v. Buchanan, supra.
The case of Whitley v. McIver, supra, upon which the appellants are relying, presented a different factual situation. No intermediate estate was created or an estate by way of remainder or executory devise, but the limitation over was by way of substitution. Therefore it was held, and properly so, that the "vesting in any event was to take effect and become absolute at the death of the testatrix."
The judgment of the Court below is
Affirmed.