Buffaloe v. Blalock

• Decision Date: 24 May 1950
• Docket Number: No. 457,457
• Citation: 59 S.E.2d 625,232 N.C. 105
• Court: North Carolina Supreme Court
• Parties: BUFFALOE et ux. v. BLALOCK.

Page 625

59 S.E.2d 625

232 N.C. 105

BUFFALOE et ux. v. BLALOCK.

No. 457

Supreme Court of North Carolina.

May 24, 1950

A. L. Purrington, Jr., and Weathers & Young, Raleigh, for plaintiffs.

C. C. Cunningham, Raleigh, for defendant.

DENNY, Justice.

The intent of the testator is the polar star that must guide the courts in the interpretation of a will. Elmore v. Austin, N. C., 59 S.E.2d 205; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888. This intent is to be gathered from a consideration of the will from its four corners, and such intent should be given effect, unless contrary to some rule of law or at variance with public policy. House v. House, 231 N.C. 218, 56 S.E.2d 695; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Culbreth v. Caison, 220 N.C. 717, 18 S.E.2d 136; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Heyer v. Bulluck, 210 N.C. 321, 196 S.E. 356.

A brief review of the provisions of the last will and testament of George R. Parker, deceased, will be helpful in arriving at his intent, as set forth in the Ninth Item thereof, which Item contains the provision upon which the validity or invalidity of the tendered deed must be determined.

The testator made provision for the education of his children, being the four sons named in the residuary clause of his will, 'to the extent of an A. B. graduate course of Wake Forest College or some other college of equal standing.' He also expressed the wish that his estate remain as an undivided whole until all of his children shall have been educated as provided therein. He directed that the income from the estate should be used in defraying the expenses of his wife and such of his children as might not have finished their college education as provided for in the will, as far as might be necessary, the remainder to accumulate for the benefit of his estate. The will then contains the following provisions:

'Sixth: After my children shall have been educated as above set out, then the remainder of my estate shall be divided as follows:

'Seventh: To my wife I give and bequeath a one fifth interest in all my personal property and a life estate of a one third interest in all my real estate.

'Eighth: To my sister Annie I bequeath the house now owned by me, situated on the South side of and known as number 307 West South Street, Raleigh, N. C., for the term of her natural life. At her death this property shall revert to my estate.'

It seems clear to us that the testator intended to dispose of all the residue of his estate, under the provisions contained in the residuary clause, including any part of his estate that might revert thereto under the terms of the will.

It is conceded that William Carey Parker was the only son and heir of the testator who had not become the father of a living child in lawful wedlock, when the deed was executed on October 10, 1949, purporting to convey the George R. Parker Farm to the plaintiffs. Consequently, at the time of the execution of this deed, Alan Phares Parker, Joseph Yates Parker and Harry Oliver Parker, were seized and possessed of a three-fourths undivided interest in the property conveyed, in fee simple. And William Carey Parker was seized and possessed of a one-fourth undivided interest in said property in fee simple, subject to be divested at his death, if during his lifetime he should 'fail to become the father of a living child by lawful wedlock.' It follows then that each of the other sons having become the father of a living child born in lawful wedlock, held his interest in fee simple and also a contingent interest in the one-fourth undivided interest of William Carey Parker.

It is quite clear that the real question for determination is whether or not the holders of the contingent interest could convey such interest to these plaintiffs, and by their deed estop themselves and their heirs from claiming any interest therein, should William Carey Parker die without having become the father of a living child born in lawful wedlock.

The appellant takes the position that the heirs of the grantor who may be eligible to take, at the death of William Carey Parker, should he die without having become a father, as contemplated in the will, cannot be ascertained until the death of William Carey Parker, the first taker, citing Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863 and Daly v. Pate, 210 N.C. 222, 186 S.E. 348.

In Burden v. Lipsitz, supra, the devise was in the following language: 'I give to my son, John Henry Burden, a fee simple title to the tract of land on which I live, it being all the land I own, provided he has a child or children, but if he has no child, then I give him the said land during his life, and to his widow if he leaves one surviving, during her widowhood and then the said land shall go in equal portions to my heirs at law as if I had made no will.' The court very properly held that upon the nonhappening of the contingency named, the heirs of the grantor took directly from the testator as his heirs at law and that the contingent event by which the estate was determined must be referred, not to the death of the devisor, but to the death of the first taker. Revisal, sec. 1581, now G.S. § 41-4. And in Daly v. Pate, supra, the testator devised to his daughter and her heirs certain lands, in fee simple absolute should she leave any child or children surviving her, but should she not leave any child or children surviving her, 'then it is my will and desire that said lands shall revert to my estate and be equally divided as best it may be between my then living nephews and nieces.' Clearly the 'then living nephews and nieces' could not be ascertained until the death of the first taker.

The above cases are not controlling on the facts presented on this appeal. The reversion of the interest of William Carey Parker, if and when it occurs, will not revert to the estate of the testator to be divided among his heirs at law, as if he had made no will, neither will it revert to his estate to be divided among his then living heirs at law. On the contrary, it will revert to the estate of the...