Entwistle v. Covington
| Decision Date | 20 May 1959 |
| Docket Number | No. 461,461 |
| Citation | 250 N.C. 315,108 S.E.2d 603 |
| Court | North Carolina Supreme Court |
| Parties | William Harry ENTWISTLE, George P. Entwistle, Mary Entwistle Thompson, and John W. C. Entwistle, v. John W. COVINGTON, Sr., Emma McCullen Covington, and John W. Covington, Sr., Executor of the Will of Leake S. Covington. |
Jones & Jones, Page & Page, Harvey C. Carroll, Rockingham, for defendants-appellants.
Leath & Blount, Rockingham, Blakeney & Alexander, Charlotte, for plaintiffs-appellees.
All the assignments of error of the appellants involve the same primary question, which is: Where a residuary clause in testator's will provides, 'The residue of my estate anything and everything of value I will and bequeath to my sisters May S. Faith L. & Elna G. Covington, or to those who reside at our homeplace, Glenwood. at the time of my death,' and the three named sisters predeceased the testator, was it the intention of the testator that the residue of his estate should devolve upon anyone who was residing at Glenwood at the time of his death?
The appellants contend that the words 'or to those who reside at our homeplace, Glenwood. at the time of my death,' should be construed to mean: or to anyone who resides at our homeplace, Glenwood, at the time of my death. Therefore, they contend that the defendants, John W. Covington, Sr., and his wife, Emma McCullen Covington, were residing at the Leake S. Covington home, Glenwood, at the time of his death and are, therefore, entitled to take the testator's entire estate under the provisions of said residuary clause. They further contend that such residuary clause is sufficient to have included any person or persons residing at the Leake S. Covington home, Glenwood, at the time of the death of Leake S. Covington, even though such persons had been strangers in blood.
The appellees on the other hand contend that the natural and proper construction to be placed on the last part of the residuary clause is this: or to those of my named sisters residing at our homeplace, Glenwood, at the time of my death. Consequently, they contend that the word 'those,' as used in the above clause, refers only to the named sisters, May S., Faith L. and Elna G. Covington, and to no other person or class of persons, and the court below so held.
The paramount aim in the interpretation of a will is to ascertain if possible the intent of the testator. In our effort to ascertain the testator's intent, we must consider the instrument as a whole and give effect to such intent, unless it is contrary to some rule of law or at variance with public policy. Wachovia Bank & Trust Co. v. Taliaferro, 246 N.C. 121, 97 S.E.2d 776; Barton v. Campbell, 245 N.C. 395, 95 S.E.2d 914; Mewborn v. Mewborn, 239 N.C. 284, 79 S.E.2d 398; Gatling v. Gatling, 239 N.C. 215, 79 S.E.2d 466; Branch Banking & Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334; 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. To aid in ascertaining the intention of a testator, his will is to be considered in the light of conditions and circumstances existing at the time the will was made. Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246; Wachovia Bank & Trust Co. v. Green, 238 N.C. 339, 78 S.E.2d 174; Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; Wachovia Bank & Trust Co. v. Board of National Missions, 226 N.C. 546, 39 S.E.2d 621; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17.
It is permissible in order to effectuate or ascertain a testator's intention for the Court to transpose words, phrases, or clauses. Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff, 195 N.C. 624, 143 S.E. 210; Gordon v. Ehringhaus, 190 N.C. 147, 129 S.E. 187.
Likewise, to effectuate the intention of the testator the Court may disregard, or supply, punctuation. Coppedge v. Coppedge, supra; Williams v. Rand, supra; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. Even words, phrases, or clauses will be supplied in the construction of a will when the sense of the phrase or clause in question as collected from the context manifestly requires it. Mewborn v. Mewborn, supra; Coppedge v. Coppedge, supra.
It would seem to be clear that the period in the residuary clause under consideration, between the name of 'Elna G. Covington' and the word 'or,' as well as the period between the word 'Glenwood' and the word 'at,' has no legal significance whatever and was clearly nothing more than typographical errors in punctuation by the writer of the will and will be disregarded.
It is conceded by all parties to this action that the chief objects of Leake S. Covington's affections were his three maiden sisters, May S., Faith L. and Elna G. Covington, who lived with him at their old homeplace, Glenwood. It is likewise conceded that, with respect to his residuary estate, it was Leake S. Covington's dominant desire and purpose so to dispose of his residuary estate that it would go to these three sisters and to the survivor or survivors of them, so long as they or any one of them remained living and residing at Glenwood. It follows, therefore, that if any one of the three sisters named in the residuary clause had been living and residing at Glenwood at the time Leake S. Covington died, she would have taken the entire residuary estate.
The appellants argue and contend that the court below made an erroneous interpretation of the residuary provisions of the will under consideration because it results in partial intestacy and that there is a presumption against intestacy. It is true that as a general rule a will will be so interpreted as to prevent intestacy as to any part of the estate, unless there is an apparent intention to the contrary or the provisions of the will are such that under the conditions and circumstances existing at the time of the death of...
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