Finch v. Honeycutt, No. 106

• Docket Nº: No. 106
• Citation: 97 S.E.2d 478, 246 N.C. 91
• Case Date: April 17, 1957
• Court: United States State Supreme Court of North Carolina

Page 478

97 S.E.2d 478 246 N.C. 91 Ronald E.FINCH, Administrator with the will annexed of
William C.Honeycutt, Deceased,
v.
Georgie Greer HONEYCUTT, Widow, William C.Honeycutt, Jr., a
Minor, Naney Ann Honeycutt, a Minor, Judy Greer Honeycutt, a
Minor, and Kester Waiton and Georgia Greer Honeycutt,
Trustees under the Last Will and Testament of William C.
Honeycutt, Deceased. No. 106 Supreme Court of North Carolina. April 17, 1957.

Harkins, Van Winkle, Walton & Buck, Asheville, for Georgia Greer Honeycutt, Widow and Kester Walton and Georgia Greer Honeycutt, Trustees.

John C. Cheesborough, Asheville, Earl J. Fowler, guardians ad litem for Unborn Persons.

WINBORNE, Chief Justice.

The assignments of error based upon specific exceptions taken by the several appellants to conclusions of law made by the trial judge of Superior Court, and presented in this Court, challenge the correctness of the judgment from which appeal is taken in two basic aspects in holding: (1) That William C. Honeycutt, by his will, devised and bequeathed to his wife Georgia Greer Honeycutt one-half interest in all of the real and personal property of which he died seized and possessed; and (2) that William C. Honeycutt, by his will, did not create a legal and valid trust for the benefit of his three children in one-half of his property, and hence the children took such one-half without regard to trust provisions set out therein.

A careful consideration of the provisions of the will, in the light of applicable principles of law, leads to the conclusion that in the first such aspect the ruling is correct and proper, but that in the second such aspect the ruling is in error.

Pertinent to such aspects of the case in hand, the intent of the testator is the paramount consideration in the construction of his will.

'In searching for the intent of the testator, as expressed in the language used by him, we start with the presumption that one who makes [246 N.C. 98] a will is of disposing mind and memory and does not intend to die intestate as to any part of his property.' Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231, 232, where the subject is fully discussed. See also Jones v. Jones, 227 N.C. 424, 42 S.E.2d 620.

In the Ferguson case, supra, it is also stated that 'Even where a will is reasonably susceptible of two constructions, the one favorable to complete testacy, the other consistent with partial intestacy, in application of the presumption, the former construction will be adopted and the latter rejected.'

Page 484

No particular form of expression is necessary to constitute a legal disposition of property. Hence, although apt legal words were not used and the language is inartificial, the courts will give effect to it where the intent is apparent. Even the form will be disregarded. Kerr v. Girdwood, 138 N.C. 473, 50 S.E. 852, 107 Am. St.Rep. 551

Moreover, the doctrine of devise or bequest by implication is well established in our law. Burcham v. Burcham, 219 N.C. 357, 13 S.E.2d 615. See also Burney v. Holloway, 225 N.C. 633, 36 S.E. 2d 5; Efird v. Efird, 234 N.C. 607, 68 S.E. 2d 279.

In the Burcham case, supra [219 N.C. 357, 13 S.E.2d 616], this statement of the principle is quoted with approval: "If a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express or formal words, the court may supply the defect by implication, and so mould the language of the testator as to carry into effect, so far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.'' 1 Underhill on Wills, Section 463.

True it is said in the Burney case, supra [225 N.C. 633, 36 S.E.2d 8], 'The settled policy of the law, however, founded upon strong reason, does not favor a devise, or even a bequest, by implication, permitting it only when it cogently appears to be the intention of the will * * *. Probability must be so strong that a contrary intention 'cannot reasonably be...