Strickland v. Johnson

213 N.C. 581

Opinions

Clarkson, J.

This case presents but one question: Did tbe testator, G. P. Edwards, by bis will, intend to convey a fee simple estate in bis land to bis second wife, Fanny Edwards, or did be intend to convey only a life estate ?

Tbe setting: (Admitted on argument and brief.) G. P. Edwards by bis first wife bad certain children, named in tbe latter part of bis will. By bis second wife, Fanny Edwards, be bad a daughter, Emma Edwards. There is no question about bis personal property — he left it all to bis daughter, Emma Edwards.

N. C. Code, 1935 (Micbie), section 4162, is as follows: “When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.”

The uniform holdings since the passage of this section has been that an unrestricted devise of real estate passes in fee.

In McIver v. McKinney, 184 N. C., 393 (396), citing numerous authorities, it is said: “Nevertheless, it is generally conceded that in the construction of a will the cardinal purpose is to ascertain and give effect to the intention of the testator — not the intention that may have existed in his mind, if at variance with the obvious meaning of the words used, but that which is expressed by the language he has employed. The question is not what the testator intended to express but what he actually expressed in his will, when all its provisions are considered and construed in their entirety.”

In Mangum v. Trust Co., 195 N. C., 469 (471), it is said: “The primary purpose of construing a will is to ascertain and give effect to the intention of the maker. The intention of the maker must be ascertained from the whole instrument.”

We think the language of the present will comes within the exception of section 4162, sufra, which reads as follows: “Unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.”

Taking the setting of the parties and construing the will as a whole, we think the widow was devised a life estate in the two lots and that the remainder was vested in Luner Nelson, Mattie "Williams, Fremont Edwards, Mary Barker, Luther Edwards, Florence Huffines and the heirs of Laney Cockman upon the death of Fanny Edwards.

The principle set forth in the case of Hampton v. West, 212 N. C., 315, is similar to that in the present action.

For the reasons given, the judgment of the court below is

Affirmed.