Fellows v. Durfey

• Decision Date: 22 October 1913
• Citation: 79 S.E. 621,163 N. C. 305
• Court: North Carolina Supreme Court
• Parties: FELLOWS et al. v. DURFEY et al.

79 S.E. 621

(163 N. C. 305)

FELLOWS et al.

v.DURFEY et al.

Supreme Court of North Carolina.

Oct. 22, 1913.

Wills (§ 597*)—Construction—Estate Devised.

Testator by a holographic will devised to his wife all his estate, desiring her to own the same just as "I now hold and own or shall hold and own at the date of my death, " her interest to be as absolute as testator's and not to be takenas a trust to be enforced by any other court than her own conscience, etc. The next paragraph enjoined on her to reserve to herself the homestead and sufficient means for the support of herself and family, and provided that if she should marry (which event did not occur) the property should be divided between her and his children according to the statute of distribution. The next paragraph appointed her sole executrix, and added the desire that testator's interest in a mercantile firm should remain unchanged unless a change was necessary. Held, that the will vested in the widow the fee in testator's property without trust or other limitation.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1319-1326; Dec. Dig. § 597.*]

Appeal from Superior Court, Wake County; Carter, Judge.

Action between E. H. Fellows and others and C. K. Durfey and others, to construe the will of Rufus S. Tucker, deceased. Judgment for the latter, and the former appeal. Reversed.

The will is as follows:

"Raleigh, N. C, Feb. 6, 1880.

"I, Rufus S. Tucker, merchant, residing in the city of Raleigh and state of North Carolina, do make and publish this as my last will and testament, at my own home and in my own handwriting.

"I give, devise, and bequeath to my dear wife, Florence Perkins Tucker, all my estate, real or personal, wherever located or however held, or all that I may acquire or hold at the time of my death, of whatever nature or description, then belonging to me. I desire that my wife shall take, hold, and own, just as now I hold and own or shall hold and own at the day of my death; I declare her interest in my estate, real and personal, shall be as absolute as my own, and not be considered or taken as a trust, technically so called, to be enforced by the judgment or decree of any court other than her own conscience, judgment, and affection shall prompt her to so regard it. In thus bestowing on my dear wife, Florence, all that I am worth, I wish my children to understand that in so doing I act upon the best convictions of my judgment and from knowledge of their mother's affection, love, and interest in the welfare, comfort, and happiness of each and all of our children, and in the belief that thereby I best protect and control them, and that she will from time to time, as her judgment, sense of justice, and duty shall in her own will direct, and as the necessities and wants of our children shall require, make to them such advancements, in cash or property, as she shall think best and proper.

"I enjoin it upon her at all times to reserve to herself, as the occupant of the homestead (which is her home) and the proper head of the family, sufficient means for the proper living of herself and family. That in making advancements to our children she shall charge such child with his or her advancement, if in property, at its market or cash value at the time of the advancement and if any child shall be advanced by me during my life, such child or children shall be charged, of which I will file for my wife's instruction with this will a full statement, and for which such child or children must account in any division that may be made by my wife, or otherwise, of my property. She will understand that the proper nurture and education of her children is not to be regarded as advancements and have never been so regarded or charged by me.

"Should my wife marry again, then it is my will that my wife and children that select three disinterested friends, my brother William (if living) being one, who shall make an equal and just division of my property between her and all of our children, or their legal representatives, as if made under the statute of distributions in this state; and in the event of her death as my widow, she may direct by writing the selection of three intelligent and disinterested friends (my brother William being one, if living), who shall make such equal and just division of all my property or estate remaining in her hands, bringing into view and account all previous advancements.

"I constitute and appoint my wife, Florence, the executrix of my last will and testament, without security or bond, and desire that so long as she can have the aid and direction of my brother William's advice, that she will be directed by him in the care and management of the property and the investment of any funds not needed or required by her in the proper nurture and maintenance and education of her family. Most of my personal and real estate is now in the name of W. H. & R. S. Tucker, and my desire is that it should remain in the same name or firm, unless there should be found some good reason why it should be changed; in that event my wife can make the change.

"In testimony of all which I have hereunto placed my name and seal.

"Rufus S. Tucker. [Seal.]

"Raleigh, N. C, Feb. 6, 1880.

"Executed before C. McKimmon, W. T. McGee.

"Note.—Raleigh, N. C, February 9, 1891. I have decided to keep no record of advances made to my married children, as 1 have advanced to them as their necessities required. My wife knows about the amounts advanced.

"Rufus S. Tucker.

"No advances have been made to my unmarried children. R. S. T."

Rufus S. Tucker died August 4, 1894, seised of a large estate, real and personal, and his widow, Florence P. Tucker, who was named therein as devisee and executrix, qualified and entered into possession, claiming the property in fee under said will. She died December 11, 1909, leaving a will whereby she disposed of the property, which she had taken possession of under the terms ofher husband's will, under the belief that she possessed the same in fee simple, and at the same time disposed, without distinguishing it, of her property which she had received from other sources. The court below being of opinion that the property devised to her under the will of her husband was not held by her in fee, but in trust, so adjudged, and the defendants appealed. This action was begun September 8, 1911. The parties, plaintiffs and defendants, other than C. K. Durfey, the surviving executor named in the will of Florence P. Tucker, are her five daughters and their living husbands and the children of a deceased son.

Tillett & Guthrie, of Charlotte, and Winston & Biggs, of Raleigh, for appellants.

J. H. Pou, S. B. Shepherd, and W. H. Pace, all of Raleigh, for appellees.

CLARK, C. J. The decision of this case affects the present control and custody of a large amount of property, and to a lesser extent its ultimate destination; for the will of Mrs. Tucker substantially divides it equally among her children and the children of a deceased son, share and share alike, but, with the exception of a cash devise to each and some personal property, gives her children the annual interest only, and devises the principal of each share in trust to be divided among the grandchildren at the death of their mothers. The will of Florence P. Tucker is not presented for construction, but the fact that the bulk of the principal of the estate is thus tied up during the lifetime of her children, who are to receive merely the interest, is the ground of the action on the part of the plaintiffs, who contend that the property was not devised to her by her husband in fee, and that the estate should be divided at this time.

The elementary rule for the construction of wills is that every will shall be construed to effectuate the intent of the testator, and that this intention must be gathered from the terms of the will itself. The testator was a man of large estate and of high intelligence, a graduate of the State University, and, as the will itself states, it is written entirely in his own handwriting and is dated 14 years prior to his death.

The language of the will is explicit, and the testator's intention is very clearly expressed, in these words: "I give, devise, and bequeath to my dear wife, Florence Perkins Tucker, all of my estate, real or personal, wherever located or however held, or all that...