Hubbard v. Wiggins

81 S.E.2d 630, 240 N.C. 197, 1954 N.C. LEXIS 677

Opinions

DeNNY, J.

The one question to be determined on this ’ appeal is whether the testatrix intended to • give J. Samuel Hubbard the three $100.00 U. S. Bonds, Series D, which were payable to her or J. Sam Hubbard, and $100.00; or did she intend to give him the six:$1,000.00 U.'S. Bonds, Series D, payable to herself, Mrs. Christian Gay Pate, and $100.0.0? '

We are not inadvertent to tbe fact that if tbe testatrix in tbe instant case bad died intestate, J. Samuel Hubbard would bave been entitled to tbe three $100.00 U. S. Bonds, Series D, as a matter of law. Ervin v. Conn, 225 N.C. 267, 34 S.E. 2d 402; Watkins v. Shaw, Comr. of Revenue, 234 N.C. 96, 65 S.E. 2d 881. There is also a presumption recognized by tbe courts in construing wills that a testator intended only to dispose of property owned by him and did not intend to include in a devise or bequest any property over which be did not have tbe power of testamentary disposition. 57 Am. Jur., Wills, section 1163, page 760; Bank v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310. It is not unusual, however, for persons to misconceive tbe extent of their testamentary rights and to undertake to dispose of property over which they have no power of testamentary disposition. Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Benton v. Alexander, 224 N.C. 800, 32 S.E. 2d 584, 156 A.L.R. 814; Lamb v. Lamb, 226 N.C. 662, 40 S.E. 2d 29; Byrd v. Patterson, 229 N.C. 156, 48 S.E. 2d 45; Trust Co. v. Burrus, 230 N.C. 592, 55 S.E. 2d 183.

We must remember, however, that in the interpretation of a will to ascertain the intent of the testator, neither presumptions nor technical rules of construction, as distinguished from rules of law applicable to the construction of wills, such as the rule in Shelley’s case or the rule against perpetuities, will be permitted to overrule the evident intent of the testator, either expressly or by necessary implication, gathered from the language of the will as a whole. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102; Heyer v. Bulluck, 210 N.C., 321, 186 S.E. 356; Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Trust Co. v. Miller, 223 N.C. 1, 25 S.E. 2d 177; Trust Co. v. Waddell, 234 N.C. 454, 67 S.E. 2d 651.

In 57 Am. Jur., Wills, section 1135, page 731, et seq., we find this statement: “The one rule of testamentary construction to which all others are servient and assistant, it has been said, is that the meaning intended by the testator is to be ascertained and given effect in so far as legally possible. The testatorial intention will control any arbitrary rule, however ancient may be its origin, . . .”

The court below being of the opinion that the provision in the will with respect to the disposition of the bonds is ambiguous, admitted testimony, over the objection of the appellant, to show the extent of the personal contacts of the testatrix with her relatives who were named as beneficiaries in her will.

The appellant assigns as error the admission of the evidence referred to above, which, in sum and substance, discloses that her sister, Nell Gay White, and her husband, John E. White, lived in the home of the testatrix from the time of their marriage in 1931 until the death of Mrs. Pate; that Mrs. White is the sister referred to in line 13 of the will, who was to con tinue to live in tbe decedent’s borne for two years after Mrs. Pate’s 'death; that Dorothy Gay White (now Dorothy Gay White Watkins), who was named as co-executrix of Mrs. Pate’s will, is the daughter of Mr. and Mrs. John E. White and was born and reared in the Pate home. (She qualified as co-executrix of Mrs. Pate’s will but later married and moved to Meridian, Miss., and was permitted by the court to resign.) That Mrs. Pate from time to time visited J. Samuel Hubbard, a nephew, Nita H. Davis (Juanita Hubbard Davis), a niece, Mrs. Lizzie Hubbard, a nieceby.mar-riage, and James A. Wiggins, a nephew. That J. Samuel. Hubbard visited Mrs. Pate several times while the Whites lived in her home; so did James A. Wiggins; that Lizzie Hubbard visited her more often than anyone else, and that Lizzie Hubbard was the only relative that visited Mrs. Pate during the last two or three years of her life.

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

In seeking to discover the intent of a testatrix, when the language used is ambiguous or of doubtful meaning, it is proper for the court to take into consideration the circumstances surrounding the execution of the will, including the condition, nature, and extent of her property, her relationship to her family and to the beneficiaries named in the will, so as nearly as possible to get her viewpoint at the time the will was executed. 57 Am. Jur., Wills, section 1144, page 741, et seq.; Herring v. Williams, 153 N.C. 231, 69 S.E. 140, 138 Am. St. Rep., 659; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Haywood v. Rigsbee, supra; Anderson v. Bridgers, 209 N.C. 456, 184 S.E. 78; Heyer v. Bulluck, supra; Cannon v. Cannon, 225 N.C., 611, 36 S.E. 2d 17; Trust Co. v. National Missions, 226 N.C. 546, 39 S.E. 2d 621.

In Cannon v. Cannon, supra, the late Chief Justice Stacy said: “The intention of the testatrix is her will. This intention is to be gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent. In interpreting the different provisions of the will, the courts are not confined to the literal meaning of a single phrase. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention.” Bank v. Corl, 225 N.C. 96, 33 S.E. 2d 613; Weathers v. Bell, 232 N.C. 561, 61 S.E. 2d 600; In re Will of Johnson, 233 N.C. 570, 65 S.E. 2d 12; Trust Co. v. Waddell, supra; Efird v. Efird, 234 N.C. 607, 68 S.E. 2d 279; Trust Co. v. Schneider, 235 N.C. 446, 70 S.E. 2d 578.

It is apparent that the testatrix was a person of very limited education, who undertook to write her own will. Generally speaking it would seem that she had in mind a rather comprehensive and elaborate plan for the disposition of her estate, but did not have sufficient experience and training in such matters to make her intent in respect to certain bequests either clear or effective. She had forty-six nieces and nephews and great-nieces and great-nephews, four of whom she excluded; two living brothers, and one sister; she made bequests to forty-five of these relatives. Except for those rendering service in connection with the administration of her estate, and Dorothy Gay White (now Watkins), who was reared in her home, all were treated substantially alike unless J. Samuel Hubbard is to take all of her bonds in the aggregate sum of $6,300.00, and $100.00, plus $200.00 along with the other nieces and nephews, great-nieces and great-nephews (excepit those expressly excluded), in the division of the proceeds from the sale of her home.

The testatrix had two sets of bonds in different envelopes, one containing $300.00 par value, and the other $6,000.00 par value. The $300.00 in bonds in the-name of the testatrix and J. Sam Hubbard, and $100.00 in cash, would be the largest amount given to any of her relatives other than those connected with the administration of her estate, except the sum of $500.00 bequeathed to James A. Wiggins, who, according to the record, is a Methodist minister-; $500.00 to her sister Nell Gay White, who lived in her home; and $500.00 to her niece, Lillie Yick, to enable her “to buy thing that she really need.” Lillie Yick, according to the pleadings, has six children, while J. Samuel Hubbard has no children. Moreover, if this testatrix knew that she did not have the testamentary power to dispose of the $300.00 in bonds because they were made payable to her and J. Sam Hubbard, but intended to give him the $6,000.00 in bonds, it is rather strange and unusual that she would have added on Hundred Dollars,” to this very large and disproportionate bequest.

Furthermore, later in her will this statement appears, “& I want fifteen hundred dollars in saving Bonds for flowers to the graves.” Ordinarily where a definite and certain devise or bequest is made and some part of the same property is disposed of in a later part of the will, the original devise or bequest is only reduced to the extent necessary to comply with the later provision in the will. 57 Am. Jur., Wills, section 1128, page 721, et seq. But, since there is some uncertainty or doubt as to what bonds the testatrix intended to include in the bequest to J. Samuel Hubbard, the court has the right to consider the later bequest or reference to savings bonds, on the question as to whether she intended to include the $6,000.00 in bonds in her bequest to him.

It is unfortunate that the court was not given any information as to the extent of the testatrix’s estate. It was entitled to such information. Often the knowledge of the extent or character of an estate is helpful in asceraining the intent of the maker of the will. Herring v. Williams, supra; Ripley v. Armstrong, 159 N.C. 158, 74 S.E. 961; Adams v. Cowen, 177 U.S. 471, 44 L. Ed. 851; Blake v. Hawkins, 98 U.S. 315, 25 L. Ed. 139.

The testatrix after making her bequests, exclusive of those in connection with the disposition of the proceeds to be derived from the sale of her home, undertook to set up a trust consisting of the residue of her estate, for the purpose of giving certain children a business education at a cost not to exceed $500.00 for each of such children. We concur with the ruling of the court below to the effect that the attempt to establish this trust failed because of its indeiiniteness or illegibility of the writing in connection therewith. Even so, it is worthy of note that at the time the testatrix executed her will she had no nieces or nephews under eighteen years of age but she did have twenty-two great-nieces and great-nephews seventeen years of age or under, none of whom, in all probability, had finished high school and who might have become eligible for benefits under such trust had the testatrix used sufficient legible language to make her intent effective. However, the mere fact that she failed in her attempt to establish this trust, and also failed to make effective provisions for the establishment of the flower fund, does not prevent the consideration of these attempts on the question of her intent.

In seeking to find and apply the intent of a testator, Stacy, C. J., said in Smith v. Mears, 218 N.C. 193, 10 S.E. 2d 659: “It is this quest for the variant minds of testators, with no two situated exactly alike and the necessity of interpreting language according to the circumstances of its use, that often results in close distinctions and renders the law of wills sui generis. Richardson v. Cheek, supra; McIver v. McKinney, 184 N.C. 393, 114 S.E. 399. Yet after saying this, we assiduously pursue the adjudicated cases for any gleam of light that may help us with the problem in hand. Worthy ideas expressed elsewhere and on other occasions, like nuggets of truth when or wherever found, know no barriers of time or place. It is only the foggy horizon that shuts them out.” Surely the testatrix’s attempt to set aside “fifteen hundred dollars in saving Bonds for flowers to the graves,” is more than a mere gleam of light bearing on her intent obtained from other adjudicated cases. We think it clearly indicates that she did not intend to bequeath the $6,000.00 in bonds to J. Samuel Hubbard.

Notwithstanding all the facts and circumstances revealed by the record, the appellant seriously contends that the testatrix not only intended to bequeath to him all her bonds, totaling $6,300.00 and $100.00 in cash, plus $200.00 from tbe proceeds to be derived from tbe sale of ber borne, but that sbe did so in plain and unambiguous language. We do not concur in tbis view.

As tbe authorities cited herein point out, in construing a will tbe language used in a single sentence, clause, or phrase, will not be permitted to control as against tbe evident intent gathered from tbe entire instrument. A will is not to be construed per parcella, but in its entirety. 57 Am..Jur., Wills, section 1137, page 735, et seq.

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

Tbe judgment of tbe court below is

Affirmed.