Clark v. Connor
| Decision Date | 14 December 1960 |
| Docket Number | No. 239,239 |
| Citation | 253 N.C. 515,117 S.E.2d 465 |
| Court | North Carolina Supreme Court |
| Parties | James J. CLARK, Jr. v. Henry Groves CONNOR, as the Executor of the Estate of Susan W. Clark; W. T. Clark, Jr., and wife, Nancy C. Clark; Mary Clark Hussey Carwile and husband, L. B. Carwile; Bessie Clark Hancock Hackney and husband, George Hackney; Elizabeth Clark David Flowers and husband, W. B. Flowers; W. T. Clark lll and wife, Joan Clark; Inez Wood; Jay Clark; Branch Banking & Trust Company; Charles H. Hackney, Elizabeth Connor Hackney, Mary Clark Hackney, G. Thomas Davis, Jr., David Clark Davis, Susanne Clark Flowers, W. B. Flowers, Jr., Raymond Clark, and the unborn descendants of W. T. Clark, Jr., and Mary Clark Hussey Carwile; and Robert G. Webb, Guardian Ad Litem of all minors and unborn descendants of W. T. Clark, Jr., and Mary Clark Hussey Carwile; and Nancy Johnson Hackney and George Hackney, Jr. |
Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, John Webb, W. D. P. Sharpe, Jr., Wilson, for plaintiff.
Lucas, Rand & Rose, Gardner, Connor & Lee, Robert G. Webb, Wilson, for defendants.
The pivotal question involved on this appeal as stated by defendants is this: 'Does the Will of J. J. Clark bequeath and devise his estate to his wife absolutely and in fee simple, or does it create a trust?'
The trial court was of opinion that the will created a trust for the benefit of the widow and children, and so held. In this ruling this Court is constrained to hold that there is error. The language used manifestly vested the widow with an estate in fee to the land devised. The words 'to take, hold, have and do with as she shall deem best and proper, for the benefit of herself and our children' are precatory in nature. Indeed they are an admonishment to the widow rather than of creative intent.
The focal point relates to the language of Item II as stated in the will above set forth. And in this connection G.S. § 31-38 pertinently provides that '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.' The purpose of this statute was to change the common law rule that a devise of land without words of perpetuity conveyed a life estate only unless there was a manifest intention to convey a fee. And since the statute a devise will carry the fee unless it appears from the will that the testator intended to convey an estate of less dignity. This rule has been consistently applied in this State since the statute was passed in 1784. See Andrews v. Andrews, ante, at page 143, where numerous cases are cited.
And bearing in mind the admonition laid down by Higgins, J., in Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298, that it is extremely rare to find two cases alike, little or no aid can be derived by a court in construing a will from prior decisions in other will cases. It is not sufficient that the same words in substance or even literally have been construed in other cases. It often happens that the same identical words require very different constructions according to context and the peculiar circumstances of each case.
The rule is elementary that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In ascertaining this intention the language used, and the sense in which it is used by the testator, is the primary source of information, as it is the expressed intention of the testator which is sought. Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 113 S.E.2d 689; Security Nat. Bank v. Hannah, 252 N.C. 556, 114 S.E.2d...
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