Bizzell Et Ux v. Mut. Bldg. & Loan Ass'n

• Court: North Carolina Supreme Court
• Writing for the Court: BROWN
• Citation: Bizzell Et Ux v. Mut. Bldg. & Loan Ass'n, 90 S.E. 142 (N.C. 1916)
• Decision Date: 04 October 1916
• Docket Number: (No. 217.)
• Parties: BIZZELL et ux. v. MUTUAL BUILDING & LOAN ASS'N.

(172 N.C. 158)

90 S.E. 142

BIZZELL et ux.

v.MUTUAL BUILDING & LOAN ASS'N.

(No. 217.)

Supreme Court of North Carolina.

Oct. 4, 1916.

Appeal from Superior Court, Lenoir County; Allen, Judge.

Controversy without action between J. A. Blzzell and wife and the Mutual Building &amp I Loan Association. From the judgment for plaintiffs, defendant appeals. Reversed.

Loftin, Dawson & Manning, of Kinston, for appellant.

C. M. Allen, of Kinston, for appellees.

BROWN, J. The only question involved in this controversy is the estate that the plaintiff, Ruth Bond Bizzell, takes under the will of her grandmother, Susan J. Bond. Said plaintiff is the wife of her coplaintiff, and they have one child, now four years of age. The clause of the will reads as follows:

"Second, I bequeath to my beloved granddaughter, Ruth Bond, my house and lot situated on East street in the city of Kinston, North Carolina. Should said Ruth Bond die without lawful heirs, said house and lot to go to Clarence Bond, Paul Bond, and William Bond, my grandchildren."

His honor held that Ruth Bond, the plaintiff, took an estate in fee in the whole, and could therefore make a good title to the property. In this we think there was error.

The word "heirs" as used in the will evidently means children, and was used in that sense by the testator, else it is meaningless. The will should be construed as a whole, so as to give effect to every part of it. It was therefore erroneous for the learned judge to discard entirely the limitation over to testator's grandchildren. It is well settled that where the context of the will indicates that the testator used the word "heirs" in the sense of children, the courts will so construe the will in order to give effect to the intention of the testator, which is a cardinal rule in the construction of wills. Smith v. Lumber Co., 155 N. C. 3S9, 71 S. E. 445; Smith v. Proctor, 139 N. C. 322, 51 S. E. 889, 2 L. R. A. (N. S.) 172.

The ulterior limitation to testator's other grandchildren plainly indicates that the testator intended that her granddaughter's estate should terminate at her death if she should die without leaving children. Whether she will die leaving children cannot be determined until feme plaintiff's death. She thus takes a defeasible fee; that is to say, a fee-simple estate to be divested if she dies without leaving children surviving her. Whitfield v. Garris, 131 N. C. 148, 42 S. E. 568, and 134 N. C. 25, 45 S. E. 904, on rehearing.

It is stated in the record that ...