Andrews v. Andrews

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE
• Citation: Andrews v. Andrews, 116 S.E.2d 436, 253 N.C. 139 (N.C. 1960)
• Decision Date: 12 October 1960
• Docket Number: No. 452,452
• Parties: Annle May Banks ANDREWS v. Norman John ANDREWS, Judith May Andrews and Elizabeth Banks Andrews.

Page 436

116 S.E.2d 436

253 N.C. 139

Annle May Banks ANDREWS v. Norman John ANDREWS, Judith May Andrews and Elizabeth Banks Andrews.

No. 452

Supreme Court of North Carolina.

Oct. 12, 1960

Paul C. West, Raleigh, for plaintiff.

W. G. Mordecai, Raleigh, guardian ad litem for the minor defendants, appellants.

MOORE, Justice.

Mrs. Lizzie May Banks, late of Wake County, died testate 11 February 1960. Her will was admitted to probate and the executrix qualified 16 February 1960.

The devisees and legatees named and referred to in the will are: plaintiff, Annie May Banks Andrews, daughter of testatrix, and defendants, Norman John Andrews, age 16, Judith May Andrews, age 12, and Elizabeth Banks Andrews, age 7, grandchildren of testatrix and children of plaintiff. A guardian ad litem was duly appointed for defendants and he filed answer.

The will is as follows:

'Raleigh, N. C., September 11-1958

(1) 'It is my decision, that after my death by possessions and property be devided as follows:

(2) 'lst three houses and lots located at 917 W South St 622 W South St and 513 S-West St be maintained operated for the best interest of my grand children as determined by my daughter

(3) 'When they become twenty one I want each to have a house but I want the rent from other properties to equlize the amount of rent each shall receive, not the up keep, each piece shall pay its own up keep (4) 'All the remainder of my real and personal properties goes to my daughter Annie May--at her death all property be devided equaly among the grand children

(5) 'The money I have on savings account at lst Federal Savings and loan bank, I want Annie May to keep there for her old age

(6) 'I want her to use the income from other properties to educate the grand children

(7) 'All my house hold furniture except what is in the kitchen be stored and kept for the grand children, especially my brass pictures potery and pichers, and all my chairs

(8) 'I appoint my daughter Annie May exzeitress with out bond.' (The paragraphs are numbered by us.)

Plaintiff, who is also executrix, requests the court to construe paragraphs 4, 5 and 6, and to that end asks 'Whether the remainder of the property real and personal conveyed to the daughter, Annie May Andrews, conveys a fee simple, or a life estate to be divided at the death of said daughter, Annie May Andrews, among the grand children.'

The court below ruled 'that Annie May Banks Andrews is the owner in fee simple of the property of the testatrix, Lizzie May Banks, except such property as is specifically devised by testatrix to her grandchildren * * *.' We assume this holding to be that--exclusive of the three houses and lots and the charge for equalizing rents referred to and provided for in paragraphs 2 and 3, and certain furniture specified in paragraph 7--plaintiff takes the property of testatrix absolutely and in fee simple.

The court is requested by the petition to interpret only paragraphs 4, 5 and 6. And since the other items of the will were not specifically construed by the court below, we refrain from a discussion of them here. Anders v. Anderson, 246 N.C. 53, 97 S.E.2d 415. We consider them only in so far as they tend to throw light upon the general intent of the testatrix.

We are concerned here with what appears to be a holograph will. It is almost entirely devoid of technical words and expressions. As stated by Higgins, J., in Morris v. Morris, 246 N.C. 314, 315, 98 S.E.2d 298, 300, 'Holograph wills especially are like the men who make them--individual.'

In ascertaining the intention of the testatrix with respect to the items of the will in controversy, it is beneficial, at the outset, to examine the will as a whole and determine the dominant purpose of the testatrix. Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578. Her general intention seems definite and clear. Her daughter and grandchildren are natural objects of her bounty. She desires to contribute to the support and security of her daughter, and especially to provide for her daughter's old age. To each grandchild she wishes to give a house, furniture and funds. She is concerned for their education. She was thinking in terms of her daughter's life-time welfare; for the grandchildren she had long term and lasting benefits in mind.

[253 N.C. 143] Paragraph 4 of the will provides: 'All the remainder of my real and personal properties goes to my daughter Annie May--at her death all property be devided equaly among the grand children.'

Plaintiff contends she takes under this item of the will the residue of the estate in fee simple and absolutely. Defendants maintain that she acquires only a life estate, with remainder to them in equal shares in fee.

Plaintiff asserts that G.S. § 31-38 and the principles enunciated in Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368, are applicable and controlling.

G.S. § 31-38 provides: '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.'

In the Taylor case testatrix devised real estate to her brother and sister to do with as they liked, and she bequeathed all her personal property to a sister 'for her to keep or dispose of as she sees best.' In a subsequent paragraph the will provides: 'I wish that after * * * the death of the brothers & sisters * * * whatever property there is left shall go to my niece, Geneva Taylor Lewis and her husband * * *.' (Emphasis added.) In holding that the named niece and her husband take nothing under the will, the court says: "Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given.' * * * Indeed, it is a general rule of testamentary construction that an unrestricted devise of real estate carries the fee, and a subsequent clause in the will expressing a wish, desire or even direction for the disposition of what remains at the death of the devisee, is not allowed to defeat the devise, nor limit it to a life estate * * *. It is understood, of course, that this rule, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will. ' The quoted rule, sometimes referred to as the 'rule of Kent,' has, in appropriate cases, been consistently applied in this jurisdiction: Walters v. Baptist Children's Home, 251 N.C. 369, 111 S.E.2d 707; Heefner v. Thornton, 216 N.C. 702, 6 S.E.2d 506; Barco v. Owens, 212 N.C. 30, 192 S.E. 862; Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Fellows v. Durfey, 163 N.C. 305, 79 S.E. 621. This rule prevails in most jurisdictions of this country and is consistently adhered to in England. 17 A.L.R.2d, Annotation: Absolute Grant--Purported Limitations, pp. 7-227. 'The general proposition * * * is that where the first taker is given either expressly or by implication, what is commonly designated as 'the absolute power of disposition,' and the terms of the devise, bequest, or conveyance to him are appropriate to carry the fee, or if personalty the analogous interest, he takes the property absolutely and an attempted limitation over of anything remaining undisposed of, or of the whole property if undisposed of, is void.' Ibid., 36.

But it is our opinion that the instant case is distinguishable from the class of cases of which Taylor is representative. There are at least four distinguishing features: (1) Here the first taker is not given the absolute power of disposition, expressly or by implication; (2) there is no provision that the remaindermen take only what is undisposed of; (3) the gift over serves to define the estate of the first taker as a life estate; and (4) it seems plain that the will intends that the daughter take only a life estate.

Where the gift to the first taker is in language sufficient, standing alone, to pass a fee simple estate, but no absolute power of disposition is expressed or necessarily implied, the gift is a life estate, provided from other clauses of the will it appears that 'at the death' of the first taker testator intends and directs a limitation over to another or others.

In Hampton v. West, 212 N.C. 315, 193 S.E. 290, 291, testator devised and bequeathed the residue and remainder of his estate to his wife, and, in subsequent paragraphs, provided that upon the death of his wife one-half of the estate then remaining be given to Charlie Spear in fee, and, if his wife should not leave a will disposing of the other half, the remaining half to go to the children of Mrs. Matthew Legasse. The Court said: 'If * * * he had merely added to the indefinite devise that after her death the land remaining (presumably meaning undisposed of) be given to another, and said no more, the rule laid down in Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817, and Carroll v. Herring, 180 N.C. 369, 104 S.E. 892, would have controlled * * *. The language of the will, in effect, that one-half of his estate remaining after the death of his wife be given in fee simple to Charlie Spear, his adopted son, and that the other half, if undisposed of by the widow by will, be given to the Legasse children, indicates the definite intention of the testator that his widow should not have power to convey the entire estate by deed in fee simple.'

Shuford v. Brady, 169 N.C. 224, 85 S.E. 303, 304, is a case in point. Testator devised all of his real estate to his son. In a subsequent paragraph he provided a limitation over in the event the son died before his majority. Then he directed: 'But * * * should he live and marry and have chiildren,...