Goode v. Hearne

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Goode v. Hearne, 180 N.C. 475, 105 S.E. 5 (N.C. 1920)
• Decision Date: 01 December 1920
• Docket Number: 443.
• Parties: GOODE ET AL. v. HEARNE ET AL.

105 S.E. 5

180 N.C. 475

GOODE ET AL. v. HEARNE ET AL.

No. 443.

Supreme Court of North Carolina

December 1, 1920

Appeal from Superior Court, Mecklenburg County; Bryson, Judge.

Action by Mamie W. Goode and husband against Agnes Goode Hearne and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

From the pertinent facts so presented it appears that J. M. Goode died in Mecklenburg county on December 10, 1918, having duly executed his last will and testament, disposing of his realty, a valuable house and lot in the city of Charlotte and also his personal estate, and leaving him surviving three children, to wit, George Goode, intermarried with Mamie W Goode, coplaintiff, and Agnes Goode Hearne, wife of Wesley Hearne, and Mamie G. Morris, parties defendant; that Mamie W Goode a devisee under said will, and her husband, George, as coplaintiff, have instituted the present action against Agnes Hearne and her husband, Mamie G. Morris, and four minors Evelyn Clarke Goode, and the children of George and M. W. Goode, duly represented by guardian ad litem, alleging that these minors without just right are claiming a proprietary interest under said will, which constitutes a cloud on the title and interest of plaintiff, Mamie W. Goode, as owner of one-third of the realty devised in item 2 of said will. The complaint also contains proper and adequate averment looking to a sale of said land for division among the true owners.

The court below being of opinion that the plaintiff Mamie W. Goode was the owner of one-third interest in the realty, the subject of this litigation, and that the minors defendant had no interest therein, entered judgment against said minors, and, further, that the property be sold at the end of two years according to the closing paragraph of the will. The guardian ad litem excepted, and appealed from the judgment against the infants; there being no objection as to the method and time of sale.

Clarkson, Taliaferro & Clarkson, of Charlotte, for appellant guardian ad litem.

Pharr, Bell & Sparrow, of Charlotte, for appellants Hearne and Morris.

E. R. Preston and Frank H. Kennedy, both of Charlotte, for appellees.

HOKE J.

The will of J. M. Goode upon which the rights of these parties depend has been duly proven and recorded, and is in terms as follows:

"Know all men by these presents, that I, J. M. Goode, being of sound mind and memory, but realizing the uncertainty of life and the certainty of death and hereby revoking all former will by me made, do make and ordain this my last will and testament in form and substance as follows: My executor hereinafter named shall give my body decent burial, pay all my just debts and collect all money belonging to my estate.

2. I give and devise in fee simple to my two daughters, Mamie G. Morris and Agnes Hearne, and to my daughter-in-law, Mamie W. Goode, the wife of George W. Goode, share and share alike, all my real estate wherever situated, and it is my will that the children of my daughter-in-law, Mamie W. Goode, by her husband, George W. Goode, shall in the event of their mother's death inherit her share of the estate.

3. I give and bequeath all my household and kitchen furniture to Mamie G. Morris and Agnes Hearne.

4. It is my will that all the rest and remainder of my property, real, personal or mixed, including all cash money, be equally divided between my two daughters, Mamie G. Morris and Agnes Hearne, and my daughter-in-law, Mamie W. Goode, and that if they, the children of my daughter-in-law survive her, they shall inherit her share of my said property as provided in section 2 of this my last will and testament.

5. My city property not to be sold in two years from the date of my death.

[Signed] J. M. Goode."

It is the approved position, here and elsewhere, in the construction of wills, that unless in violation of law the intent of the testator, as expressed in the will, shall prevail, and in ascertaining this intent the entire will shall be considered, giving to each and every part significance, and harmonizing apparent inconsistencies where this can be done by fair and reasonable interpretation, and that the language of the instrument shall be given its natural and customary meaning, unless it clearly appears that some other permissible meaning is intended. The decided cases with us are to the effect also that where a defeasible estate is conferred by will, with no definite time fixed for the same to become absolute, the time of the testator's death will be adopted, unless it appears from the terms of the will that some intervening time is indicated between such death and that of the first taker; and, further, in determining this matter and in case of ambiguity, the courts are inclined to regard the first taker as the primary...