Allen v. Cameron

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: Allen v. Cameron, 181 N.C. 120, 106 S.E. 484 (N.C. 1921)
• Decision Date: 23 March 1921
• Docket Number: 251.
• Parties: ALLEN v. CAMERON.

106 S.E. 484

181 N.C. 120

ALLEN v. CAMERON.

No. 251.

Supreme Court of North Carolina

March 23, 1921

Appeal from Superior Court, Wake County; Kerr, Judge.

Action by W. M. Allen against Bennehan Cameron. From a judgment for defendant, plaintiff appeals. Affirmed.

Under a will whereby testator, to provide for any omission, declared his daughter to be residuary legatee, to receive and take all that should be omitted, or that should fall in and become his, with further provision that she should have paid her full child's part on the division of his personal property, without any deduction for advances, such daughter took, not only the undisposed of personalty of testator, but also the undisposed of realty; such being his intention, in view of the clause itself and the remainder of the will "legacy" including a devise, and "legatee" a devisee, if necessary.

This is a civil action, brought by W. M. Allen against Bennehan Cameron for the specific performance of a written contract whereby Mr. Cameron agreed to sell to W. M. Allen, and said Allen agreed to buy from him, a house and lot in Raleigh, N C., on East Jones street, at the price of $8,000 in cash. The defendant Cameron, in apt time, tendered the deed from him and his wife to said Allen, and demanded the payment of the sale price of $8,000. Mr. Allen made no objection to the form of the deed, or that the property was not free from incumbrance, but refused to accept the deed, or to pay the sale price, solely on the ground that item 16 of the will of Mr. Paul C. Cameron did not pass said house and lot to his daughter, Mildred Cameron, who devised the same to defendant Bennehan Cameron, and hence that the defendant, Bennehan Cameron, did not have and could not convey a good title to said house and lot; the said Allen contending that the words "residuary legatee" in item 16 passed undisposed-of personal property alone, but did not pass undisposed-of real estate, while the defendant, Cameron, claimed that item 16 passed undisposed-of real estate also, including the house and lot in question.

The house and lot was owned by Paul C. Cameron at the time of his death, but is not specifically mentioned in his will, and there is no other residuary clause in the will except item 16. Mr. Paul C. Cameron wrote his own will. Item 16 of the will of Paul C. Cameron is as follows:

"Item 16. And to provide for any omission I name and declare my daughter, Mildred Cameron, the residuary legatee, to receive and take all that shall be omitted, or that shall fall in and become mine, either in law or equity, and that she shall be paid her full child's part on the division of my personal property, without any deduction for any advances, as she has needed none and received nothing beyond what she deserved for her care of her parents, and as a member of my family."

The court below rendered judgment in favor of the defendant, and held that item 16 of the will of Paul C. Cameron did pass the house and lot to Mildred Cameron, and that her will devised the same to the defendant, Bennehan Cameron, and therefore that he was the owner in fee simple of the same, and that, upon his tendering to the plaintiff a deed in sufficient form to pass title in fee to the house and lot free from incumbrances, the plaintiff should accept the same and pay the sale price of $8,000 over to the defendant.

The plaintiff excepted and appealed, and filed six exceptions and assignments of error set out in the record. All of plaintiff's exceptions and assignments of error are based upon his contention that the court erred in holding that item 16 of the will of Paul C. Cameron operated to make his daughter, Mildred Cameron, his residuary devisee as well as residuary legatee, and that the house and lot passed to her; it being conceded that, if she acquired the title to the house and lot, it passed by her will to the defendant, and that he is now the owner in fee of the same, and that the deed already tendered by him is fully sufficient to convey the house and lot to plaintiff in fee. Therefore all of plaintiff's exceptions and assignments of error will be considered together.

The only question is as to whether item 16 of the will of Paul C. Cameron passed to his daughter, Mildred Cameron, the undisposed-of real property as well as the undisposed-of personal property.

R. N. Simms, of Raleigh, for appellant.

Ernest Haywood, of Raleigh, for appellee.

WALKER, J. (after stating the facts as above).

We have no doubt as to what Mr. Cameron meant by the language employed in the residuary clause of his will. It is clear from the preamble, or introductory clause, that he intended to dispose of all that he owned or possessed, and not to die intestate as to any part of his large estate. He disposed of the larger part of it with great care and particularity, and when he came to the final clauses, thinking that he may have inadvertently overlooked some part of it, he inserted the residuary clause to provide for any such omission on his part. This is generally the intention of a testator in making such a provision, and is the peculiar office of a residuary clause. It will embrace anything not before disposed of in the will, both real and personal property, unless there are words used to restrict its meaning. Perusing the entire will of Mr. Cameron, and comparing all of its parts with each other, we are led to the conclusion that he has expressed his intention throughout with unusual clearness and precision; with the clear understanding of the other parts of his will, in which he provides for all those whom he regarded as the proper objects of his bounty and solicitude, he then takes precaution against the contingency of anything being left out, which shows additionally that he intended to dispose of everything he had, and this also is according to the presumption of fact which the law raises, for Justice Ruffin said in Reeves v. Reeves, 16 N.C. 386:

"It is to be remembered that every testator is presumed not to intend to die intestate, as to any part of his estate, and, therefore, that a residuary clause is always, unless expressly restrained, held to pass whatever is not otherwise disposed of. If there was nothing particular, therefore, in this will, there could be no question."

See, also, Powell v. Wood, 149 N.C. 235, 62 S.E. 1071; Austin v. Austin, 160 N.C. 367, 76 S.E. 272; Homes v. Mitchell, 6 N. C. 228, 5 Am. Dec. 527; Williams v. McComb, 38 N.C. 450; Page v. Foust, 89 N.C. 447; Foil v. Newsome, 138 N.C. 115, 50 S.E. 597, 3 Ann. Cas. 417; Jones v. Myatt, 153 N.C. 225, 69 S.E. 135; Norris v. Durfey, 168 N.C. 325, 84 S.E. 687.

Cases in other jurisdictions are to the like effect. Wilson v. Wilson, 261 Ill. 174, 103 N.E. 743; Russell v. Elden, 15 Me. 193; Bacon v. Bacon, 55 Vt. 243; Yopp v. Railroad, 148 Ga. 539, 97 S.E. 534.

Justice Story in Burwell v. Cawood, Executor of Mandeville, 2 How. 560, 577, 11 L.Ed. 378, 385, considered a case very much like ours, and thus said, after referring to certain legal principles and to the testator's intention, as disclosed by his will, when read in the light of these principles:

"There can, we think, be no doubt that the testator intended by his will to dispose of the whole of his estate, real and personal. The introductory words to his will, already cited, show such an intention in a clear and explicit manner. * * * He therefore looks to the

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