Capehart v. Burrus

• Decision Date: 01 March 1898
• Citation: 29 S.E. 97,122 N.C. 119
• Parties: CAPEHART et al. v. BURRUS et ux.
• Court: North Carolina Supreme Court

29 S.E. 97

122 N.C. 119

CAPEHART et al. v. BURRUS et ux.

Supreme Court of North Carolina

March 1, 1898

Appeal from superior court, Bertie county; Brown, Judge.

Action by A. Capehart and others, executors of the estate of W. J Capehart, deceased, against W. P. Burrus and Margaret L Burrus, his wife, for instructions. From the judgment plaintiffs appeal. Reversed.

Faircloth C.J., and Clark, J., dissenting.

The facts that testator had no "stock" securities when the will was written, or at the time of his death, and that he had a large amount of live stock, could not be considered in determining the meaning of the word "stock," such facts not appearing in the will.

Francis D. Winston, for appellants.

Simmons, Pou & Ward, for appellees.

FURCHES J.

The principal question presented in this appeal is the meaning to be given to the word "stock," in construing the will of W. J. Capehart. It appears from the will that the testator was a man of considerable estate; that on the 5th day of December, 1894, he made the will under consideration, and died in March following. At the time of making the will, he had a wife and several children, all of whom were living at the time of his death. By the third paragraph of his will, he devised to his wife, Eliza Mason Capehart, three several tracts or parcels of land in fee simple. By the fourth paragraph, he willed to his said wife two horses, to be selected by her, two milch cows, to be selected by her, one buggy and harness, corn, fodder, and 1,000 pounds of pork from the gallows, all his poultry, and all his household and kitchen furniture, except the organ, piano, and the furniture in Minnie's room. These he gave to Minnie by the next paragraph of his will. By the eighth paragraph he gives one tract of land, and mills and gins thereon, to his daughter Minnie Capehart, in fee simple. By the eighth paragraph he loans to his daughter Martha Tyler, for her natural life, "her home tract of land," and then in fee simple to her children. By the tenth paragraph he loans to Susan Tyler, another daughter, for her natural life, two tracts of land in Northampton county, and at her death to her children. By the eleventh paragraph he gives to Margaret Burrus, another daughter, a tract of land in Northampton county, called the "Brown tract," for her life only, and at her death to Lizzie Burrus in fee simple. By the twelfth paragraph he devises to his son, Dr. A. Capehart, in fee simple, the Indian Woods place. By the thirteenth paragraph he devises to Leroy Capehart, another son, the land on the right-hand side of the public road in Roxabel. By the fourteenth paragraph he provides that "all my notes, bonds, stock, and money on hand I wish divided between my wife, Eliza Mason Capehart, Minnie Martin Capehart, Margaret Lula Burrrus, Leroy Capehart, and Dr. A. Capehart." By the fifteenth paragraph he provides that all the rest of his estate, "whether named in this item or not, consisting of both real and personal property, I direct my executors to sell, as follows: The personal property for cash, and the lands on a credit of five years, on equal installments, with retained title until the lands are paid for. I express and give my executors full authority to sell and dispose of said lands not herein mentioned by me, and as herein directed." By the sixteenth paragraph he provides that, out of the proceeds arising from the sale of the property mentioned in the fifteenth paragraph of his will, his executors are directed to pay the following: To Hellen Tyler, one hundred dollars; to Bertie Tyler, one hundred dollars; to Charles C. Tyler, one hundred dollars; "and all the rest and residue of said sum, so arising from said sales, I give equally, share and share alike, to Dr. A. Capehart, Leroy Capehart, and Minnie Martin Capehart." There are some general rules to be observed in construing a will: That the whole will must be considered for the purpose of arriving at the intention of the testator, if that can be done, and then to put such construction upon the will as will carry out the intention of the testator, if the language used therein will authorize the court to do so. Brawley v. Collins, 88 N.C. 605. That words of art should be taken in their technical meaning, unless it appears from the will that they were used in a different sense. That, when the language used is not "words of art," it should be construed to have the meaning of such words in ordinary parlance. And there are other general rules which do not apply to this case. But, at last, every will stands alone, and must be construed alone. There are no fixed and certain rules to guide the court in making the construction. With these general observations, we will proceed to put such construction on this will as it seems to us the language used will authorize, and most nearly carry out the intention of the testator, as we are not authorized to make his will, but only to interpret its meaning from the will itself. Brawley v. Collins, supra.

It is contended by the plaintiffs that the word "stock," used in the fourteenth paragraph, means choses, bonds of corporate bodies, or of governments, or evidence of shares in corporations or joint-stock companies, while the defendants contend that it means live stock, horses, mules, cattle, etc. The court below adopted the defendants' contention, and held that it meant live stock,--domestic animals. In this, we are of the opinion, there was error, and that the plaintiffs' contention is correct; that is, that it means dead stock, choses, bonds, evidence of an interest in capital stock of some incorporated or joint-stock company. This is the primary meaning, in law language, of the word "stock." 23 Am. & Eng. Enc. Law has a chapter entitled "Stock," and in a treatment, of over 100 pages, this word is given no other meaning than that given to it in this opinion. On page 584 of this volume the discussion commences, and the meaning of the word "stock" is given. This author says that the word "stocks" "is sometimes used, but with doubtful accuracy, and it is at least obsolescent." Besides this, it is used in the same sentence with "all my notes, bonds, stock, and money on hand." This, in our opinion, is significant of the meaning the testator intended it to have. It is in the wrong place, or, as was said by counsel, "it is in the wrong stable for horses and mules." In Brawley v Collins, 88 N.C. 605, the testator gave his wife a life estate in a part of his lands, and devised other parts in fee simple. He made no express disposition of the remainder of the land he willed to his wife for life. This devise to his wife was in item 11, in which he provided as follows: "It is my will that all property, money, and effects willed by me to my wife Mary that may be left at her decease shall be equally divided between my daughter Betsy and grandsons Stephen Brawley and Peter W. Brawley." Upon the death of the wife, Stephen and Peter claimed two-thirds of the land willed to their grandmother, Mary, for life, under section 11 of the will. In construing this will, the court say "that...