Efird v. Efird

• Decision Date: 12 December 1951
• Docket Number: No. 527,527
• Citation: 68 S.E.2d 279,234 N.C. 607
• Court: North Carolina Supreme Court
• Parties: EFIRD, v. EFIRD et al.

Page 279

68 S.E.2d 279

234 N.C. 607

EFIRD, v. EFIRD et al.

No. 527

Supreme Court of North Carolina.

Dec. 12, 1951

David J. Craig, Jr., Charlotte, for defendants, appellants.

Pierce & Blakeney and Richard E. Wardlow, all of Charlotte, for plaintiff, appellee.

DENNY, Justice.

The primary object in interpreting a will is to ascertain what disposition the testator intended to make of his estate. First Nat. Bank of Salisbury v. Brawley, 231 N.C. 687, 58 S.E.2d 706; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. Consequently, the intention of the testator is the polar star that must guide the courts in the interpretation of a will. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625; Elmore v. Austin, 232 N.C. 13, 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 intention is to be gathered from a consideration of the will from its four corners, and this intention should be given effect, unless contrary to some rule of law or at variance with public policy. Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; House v. House, 231 N.C. 218, 56 S.E.2d 695; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

Furthermore, Stacy, C. J., speaking for the Court in the case of Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613, 616, said: 'The intention of the testator is his will. This intention is to be gathered from the general purpose of the will and the significance of the expressions, enlarged or restricted according to their real intent. In interpreting a will, the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention.'

In construing the instrument before us, what do we find to be the intention of the testator with respect to the disposition of his property?

In the first place, it is clear that when the testator wrote Item III of his will, he was under the erroneous impression that he and his wife owned their home place, located at 224 Hermitage Road, Charlotte, North Carolina, as tenants by the entirety. Being under this impression, he stated that the property upon his death, if his wife, Maude Gray Efird, be living, she would automatically own the property. He then proceeded to bequeath to her any automobile or automobiles that he might own at the time of his death and also all of his right, title and interest in and to all furniture, household effects, and other tangible property contained in their family residence, to be hers absolutely and forever.

In Item IV of his will, the testator provided that after the personalty bequeathed in Item III of his will had been given to his wife, and she had received the real estate that might be owned at the time of his death by them as tenants by the entirety, and after the debts of his estate were paid from the corpus of his general estate, but before any death, inheritance, or estate taxes shall be considered or taken into account, his wife, Maude Gray Efird, should have two-sixths or one-third interest in all his estate. Again it is clear that the testator did not intend for the home place to constitute a part of the estate at the time of this division. He was under the impression that when this division would take place, his wife would be the absolute and fee simple owner of the property.

Even so, he did not stop there. He included an additional provision in Item V of his will, directing the payment of death, estate, inheritance and other similar taxes and duties, properly chargeable against his estate, 'after all my debts shall have been paid, and after the above properties shall have been given to my wife.' In other words, 'the above properties,' which 'properties' necessarily include the home place, must first be set apart and given to his wife, and then out of the remainder of the estate the taxes properly chargeable against the estate were to be paid. He further provided that when such taxes were paid, no part thereof should be charged against any particular beneficiary under his will. Finally, the net remaining assets in the estate were to be divided equally among his four children.

We are not inadvertent to the rule, which the appellants contend is controlling here, to the effect that where 'a testator erroneously recites that he has made some disposition of property belonging to him by an instrument other than the will, it is held that such recital is merely an incorrect description of an instrument extrinsic to the will and may not operate as a gift by implication.' 57 Am.Jur., Wills, section 1193, page 784. We think this rule would be applicable in the instant case if the plaintiff had to rely exclusively on the provisions of Items III and IV of the will. In these items, the testator does not refer to the real estate held by the entireties as a gift or devise, but merely as passing to his wife, but in Item V of...