Wilmington Savings & Trust Co. v. Cowan

208 N.C. 236

• Court: Supreme Court of North Carolina
• Decided: May 22, 1935
• Status: Published

Opinion

CoNNOR, J.

It was manifestly tbe intention of tbe testatrix at tbe time she executed ber last will and testament tbat ber “personal belongings, furniture, and personal effects” should not be sold by ber executor, or included in tbe division of ber estate, which she directed ber executor to make for purposes of distribution. This intention appears from tbe “four corners” of tbe will, and is tbe pole star by which tbe Court must be guided in construing tbe provisions of tbe will. Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417.

In Item III of ber will tbe testatrix directed and empowered ber executor to sell all ber personal property “except ber personal effects, furniture, and furnishings.” In Item IY she requested ber executor to dispose of ber personal belongings, ber furniture, and other personal effects by delivering them to tbe persons whose names would appear on a memorandum which she intended to prepare and file with ber will. She failed to prepare and file tbe memorandum. For this reason, tbe provisions of Item IY of ber will are incapable of taking effect, and tbe legacy is void. Faison v. Middleton, 171 N. C., 170, 88 S. E., 141.

Under tbe provisions of O. S., 4166, tbe property which is tbe subject matter of tbe void legacy, is included within tbe residuary legacy provided by Item Y of tbe will, and should be delivered by tbe executor to tbe defendants Sarab Stone Cowan and Mary Giles Cowan King.

There is error in tbe judgment, which must, for tbat reason, be

Reversed.