Grantham v. Jinnette

• Decision Date: 26 March 1919
• Docket Number: 104.
• Citation: 98 S.E. 724,177 N.C. 229
• Parties: GRANTHAM ET AL. v. JINNETTE ET AL.
• Court: North Carolina Supreme Court

98 S.E. 724

177 N.C. 229

GRANTHAM ET AL. v. JINNETTE ET AL.

No. 104.

Supreme Court of North Carolina

March 26, 1919

Appeal from Superior Court, Wayne County; Daniels, Judge.

Action by D. C. Grantham and others against Ezra Jinnette and others to recover property in defendant's possession, the University of North Carolina intervening and being made a party by order of the court. From a judgment for plaintiffs defendants and intervener appeal. Reversed.

Allen J., dissenting.

W. S O'B. Robinson, A. C. Davis, and Teague & Dees, all of Goldsboro, Leon G. Stevens, of Smithfield, and D. H. Bland of Goldsboro, for appellants Jinnette and others.

Bryant & Brogden, of Durham, Hood & Hood, of Goldsboro, and Murray Allen, of Raleigh, for appellant University of North Carolina.

Langston, Allen & Taylor, J. L. Barham, Dickinson & Land, and J. F. Thomson, all of Goldsboro, W. W. Cole, of Smithfield, and D. C. Humphrey, of Goldsboro, for appellees.

CLARK C.J.

The case turns upon the construction of the following clauses of the will of Haywood Bizzell:

"Item 3. I give and bequeath to my beloved wife, Elizabeth, for the term of her life, all the balance of my real estate, all personal property of every kind of which I shall die seized or possessed."

Item 5. After her death I desire that all property, real and personal left by her under item 3 of this will, shall be sold publicly or privately, as he (the executor) shall think best, and the proceeds shall be divided among my legal heirs subject to the following bequests."

The following admissions were made on the trial and entered in the record:

(1) That the testator was an illegitimate son, born in 1833; that his mother was never married, and died in 1862, and that the testator was her only child; that the testator married in 1856, but no children were born of said marriage; that he died in December, 1896, leaving his widow and the will in question; that at the time of his death he was seized in fee and possession of the lands in question which were all acquired by purchase.

The plaintiffs do not claim that they are the heirs at law of the testator, nor that they are entitled to any part of his estate under the statute of descents. Bettis v. Avery, 140 N.C. 184, 52 S.E. 584. But they contend that they are the persons referred to and intended by the testator in the use of the words "my legal heirs," and that by parol testimony they can show that by the devise of his property, after the life estate given his wife, to "my legal heirs," he intended Mack McCullen and Frank McCullen. Cal (or Mack) McCullen and Frank McCullen were the sons of Ann Bizzell, the sister of the testator's mother who married a McCullen. Mack McCullen and Frank McCullen are dead, and the plaintiffs are their heirs at law. The language on which the plaintiffs rely is the testimony of one Odom that on one occasion his father said to the testator, "Haywood, what are you going to do with your property?" to which he replied: "Well, I don't know. I have never decided exactly what I will do with it." And when further asked, "Haven't you got no kin people?" to which he said: "Yes, I have got some kin people. Mack McCullen and Frank McCullen are kin to me." He said that that was about 25 years ago and about 3 or 4 years before testator died.

R. A. Whitfield, witness for the plaintiff, testified that he heard the testator say that Mack McCullen was the nearest kin he had. John White testified that he had seen the testator a few times; that a year or a year and a half before he died, when he went to pay him some rent, the testator "got to talking with him, and he said he had no children and no kin folks, but the McCullens were kin to him and would be his heirs, he reckoned." Davis Wiggins testified that the testator "took dinner with him on one occasion, and stated in conversation that his mother was a Bizzell, that Annie McCullen was her sister, and spoke of his mother and Cal's mother being sisters; that he does not remember hearing him speak of any one else."

This evidence taken to be true cannot vary the expression in the will that the property, after the life estate given to his wife, should go to his "legal heirs." There is no ambiguity. The devise is to a class--"my legal heirs"--and who they were is a matter of law, even if the testator had erroneously supposed that under the law illegitimates could inherit as heirs (but the evidence and the will show that he did not).

Upon the evidence the motion for nonsuit as to the plaintiffs should have been granted. This is not the case where there is a latent ambiguity as to the person intended and evidence is admitted which shows that the testator was in the habit of calling the person by the name set out in the will, though it was not the true name of the person. It often happens that the person is known by a nickname or some other name in common use, and such designation is shown by parol testimony to point out the devisee who was intended; but in all those cases the person was clearly intended, and the question is only of identification.

But here the class is clearly and definitely stated in terms that admit of only one construction, "my legal heirs," and admittedly Mack McCullen and Frank McCullen did not come within that designation.

Besides, the will was written several years before the death of the testator, when his wife was some 40 years old. It was by no means improbable that he might have children by her, or that she might die and he might have children by a second marriage. If the loose words used were sufficient to substitute Mack McCullen and Frank McCullen in lieu of the words "my legal heirs," it would not only contradict the terms of the will which is unambiguous, but if there had been the subsequent birth of children by his then wife, or by any subsequent wife, they would have been incapable of inheriting as against the two McCullens. This construction is therefore not to be entertained, and it would be useless to cite the numerous cases which are to be found in all the books to the effect that, when an unambiguous expression is used in a will, such as "my legal heirs," it cannot be contradicted by verbal statements put in evidence 25 years later, or at any other time showing that the testator recognized as related to him persons who were not his legal heirs and that he intended that the property should go to him in spite of his devising his estate not to them but to "his legal heirs." Who are the "heirs" is not a matter for the jury, but a matter of law for the court. Bradford v. Erwin, 34 N.C. 291; Morrison v. McLauchlin, 88 N.C. 255; Patterson v. Wilson, 101 N.C. 597, 8 S.E. 341. Besides, the testimony, if competent, was not sufficient to be presented to the jury.

The defendants who are in no wise related to the testator claim as heirs of the wife, and insist that she was entitled under Rev. § 1556, which provides:

"When any person shall die leaving none who can claim as heir to him, his widow shall be deemed his heir, and as such shall inherit his estate."

This would apply only if there had been no will or a will not disposing of the entire estate. In such case, this property would have gone to the wife and then to the defendants as her heirs. But here the testator disposed of all his property by his will, and intended to dispose of it fully, which conclusively appears from the will itself; and, this being the case, when there is a default in the "legal heirs" to whom a part of the remainder of the estate is devised, it does not go to the wife, but to those who fill the designation of legal heirs at the time the remainder should fall in.

The testator devised and bequeathed to his "wife, Elizabeth, for the term of her life, all the balance of my real estate, all personal property of any kind of which I shall die seized and possessed." She elected to take under the will and never dissented.

In item 2 of the will, the testator had given to Preston Thornton 106 acres of land described in the will, and the balance of the estate to his wife for life.

Item 4 of the will provides:

"After the death of my said wife I devise and bequeath to the Oxford Orphan Asylum $1,000 to be collected from the sale of the property, real or personal, left at my said wife's death."

Item 5 provides:

"After her death, I desire that all property real and personal, left by her under item 3 of this will shall be sold publicly or privately, as the executor shall think best, and the proceeds thereof shall be divided among my legal heirs, subject to the following bequests, to wit:

Item 6. I give to D. A. Bizzell, son of Albert Bizzell, five hundred ($500) dollars, after my wife's death.

Item 7. I give to Ann Eliza Cox, daughter of W. E. Cox, two hundred dollars, to be paid after my said wife's death.

Item 8. I give to Selah Church built by my wife, namely, two hundred dollars to be paid after my wife's death.

Item 9. I hereby appoint John S. Bizzell, executor of this will."

The questions presented are:

(1) As of what time is the class designated by the testator as his "legal heirs" to be ascertained--at the time if his decease, or at the decease of his widow?

(2) What was the effect of the widow's failure to dissent? This last need not be determined, unless we were of opinion that the class was to be ascertained as of the time of the testator's decease.

Although in the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in the light of the surrounding circumstances, the class described by the testator as his legal heirs, etc., to whom a remainder or executory interest is given by the will is to be ascertained at the death of the testator, the fact that the...