First Nat. Bank of Salisbury v. Brawley

• Citation: 58 S.E.2d 706,231 N.C. 687
• Decision Date: 12 April 1950
• Docket Number: No. 385,385
• Court: United States State Supreme Court of North Carolina
• Parties: FIRST NAT. BANK OF SALISBURY v. BRAWLEY et al.

Page 706

58 S.E.2d 706

231 N.C. 687

FIRST NAT. BANK OF SALISBURY v. BRAWLEY et al.

No. 385.

Supreme Court of North Carolina.

April 12, 1950.

Woodson & Woodson, Salisbury, for plaintiff appellee.

Kerr Craige Ramsay and Clarence Kluttz, Salisbury, for appellants.

Brooks, McLendon, Brim & Holderness, Greensboro, for J.W. Brawley and others.

W.C. Coughenour, Jr., Salisbury, Guardian ad Litem for minor defendants.

DENNY, Justice.

In construing a will, the instrument should be considered from its four corners, and effect given if possible, to every clause, or phrase and word therein. Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Lee v. Lee, 216 N.C. 349, 4 S.E.2d 880; Bell v. Thurston, 214 N.C. 231, 199 S.E. 93; West v. Murphy, 197 N.C. 488, 149 S.E. 731; Roberts v. Saunders, 192 N.C. 191, 134 S.E 451; Snow v. Boylston, 185 N.C. 321, 117 S.E. 14; McCallum v. McCallum, 167 N.C. 310, 311, 83 S.E. 250.

The primary object in interpreting a will is to ascertain what disposition the testator intended to make of his estate. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. 'It is the accepted position in the construction of wills that, unless in violation of some law, the intent of the testator as expressed in the will shall be given effect, and in ascertaining this intent the will shall be considered as whole, giving to each and every part significance and harmonizing apparent inconsistencies, where this can be done by a reasonable interpretation. ' Snow v. Boylston, supra (185 N.C. 321, 117 S.E. 16), and cited cases.

It is quite clear that the testator did not intend for these appellants to share generally as next of kin per stirpes, in his estate. He expressed that intent very clearly in Items III and V of his will. Consequently, he gave to each of them $2,000.00, in lieu of a full share, and state his reason for doing so. He further expressed the intent in Item V of his will, that the residue of his estate, which except for a few personal items, constituted all his estate, other than the legacies to these nephews in Item III and the trust estate set up in Item IV, should go to the beneficiaries named therein or the survivors thereof, per stirpes, to the exclusion of these nephews. However, it will be noted that the exclusion of the nephews in Item V was limited expressly to 'this clause' and not to the will generally.

We think a careful consideration of the language contained in Items III and V of the will, reveals an intent on the part of the grantor to make what he deemed to be an equitable distribution of his estate as between the children of his deceased brother, R. Vance Brawley, and the residuary legatees, because of the superior financial status of these particular nephews. But he does not use any language in making the final disposition of the residue that might be left in the trust estate, upon the death of the beneficiary of the trust, that would indicate an intention to exclude the appellants from participating in the distribution thereof. He expressly directs his trustee, upon the death of his brother, W.B. Brawley, to 'distribute the residue of this trust estate remaining to and among my next of kin, per stirpes.'

The primary purpose for creating the trust estate and including in the corpus thereof the share devised to W.B. Brawley under Item V of the will, was to provide for the 'maintenance, support and resonable comfort' of this brother. The trustee, if it had been necessary to do so, might have expended the entire corpus of the trust estate on him. Therefore, the testator may not have considered the disposition of the residue of the trust estate of primary importance. On the other hand, he may have considered that the adjustment already made in the distribution of the major portion of his estate, met his conception of an equitable distribution of the major portion of this estate, met his conception of an equitable distribution thereof, and that he intended for these appellants to share as next of kin per stirpes, in the residue, if upon the death of his brother, there should be anything left in the trust estate. The language he used is sufficient to include them and will be so construed, unless a contrary intent on the part of the grantor can be gathered from the will as a whole. Wheeler v. Wilder, 229 N.C. 379, 49 S.E.2d 737; Robinson v. Robinson, 227 N.C. 155, 41 S.E.2d 282; 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; Holland v. Smith, 224...