Heyer v. Bulluck

• Decision Date: 15 June 1936
• Docket Number: 604.
• Parties: HEYER v. BULLUCK et al.
• Court: North Carolina Supreme Court

186 S.E. 356

210 N.C. 321

HEYER v. BULLUCK et al.

No. 604.

Supreme Court of North Carolina

June 15, 1936

Appeal from Superior Court, New Hanover County; Williams, Judge.

Suit by Catherine Heyer, guardian, against May Bell Bulluck and others, for the construction of the will of Mary B. Heyer deceased. From the judgment, plaintiff and defendants appeal.

Error and remanded.

Legacy of $30,000 to testatrix' granddaughter, followed by statement "I received from her father, Henry Heyer. When she becomes 30 years old now invested in Pub Utilities," inserted with general legacies, held "general legacy," payable out of general assets of estate when granddaughter was 30 years old.

Civil action for construction of will.

The record discloses that Mary B. Heyer, late of New Hanover County, died January 1, 1934, leaving a holograph will, which is now the subject of controversy between or among the parties litigant. It was written in pencil, without the aid of counsel, found among her valuable papers, and has been duly probated in common form. Here it is:

"In the name of God, Amen.

I, Mary B. Heyer, do on this the 15th day of September, 1930, make my last will and testament:

I give to my brother,

(On the margin) Judge Charles

G. Bell $2000

*To my grand daughter I give to my brother,

and namesake Mary William K. Bell 2000

Bell Heyer 30,000 thirty I give to my sister,

thousand dollars. I Annie V. Buffinger 2000

received from her father To my niece Virginia

Henry Heyer. A. Jardine 2000

When she becomes 30 *To my faithful

years old now invested servant George

in Pub. Utilities. Baldwin if still in

my employ 1000

To my faithful

servant James

Highsmith if still

in my employ 1000 The balance of my estate to my dear & only child Mary Bell to be held in trust by her during her lifetime. Her husband to have no part in the management of my estate or this will becomes null & void.

At her decease I desire it to pass to my grandchildren to be divided in two parts, one half to her children and one half to my son's children when the youngest grandchild is 30 years old.

If any legatee be not living at the reading of this will the legacy reverts to my estate. I appoint my daughter Mary Bell my executor. Mr. Hugh MacCrae overseer to this will that my wish as to the management be carried out.

Mary B. Heyer."

Adumbrative of the mind of the testatrix, the following background and setting was made to appear in the court below:

1. In 1913, Matthew J. Heyer died, intestate, leaving him surviving, his widow, the present testatrix, a son, Henry, and a daughter, Mary Bell. Under the law, these three took equal shares, a third each, in the intestate's estate, which amounted to approximately $300,000.

2. Henry, who was a lawyer, administered on his father's estate, and thereafter managed his mother's distributive share, commingling it with his own, which, after his death, became the subject of litigation between his mother and his widow.

3. Henry died in 1929, leaving him surviving his widow, Catherine Heyer, plaintiff-guardian herein, and two children under fourteen years of age, plaintiff-guardian's wards herein. At the time of Henry's death he had in force life insurance aggregating $30,000, payable to his mother as beneficiary. This was duly collected and invested in certain public utility stocks, or rather intrusted to a New York broker for use in what appears to be a trading account.

4. In 1915, the daughter, Mary Bell, married Dr. Ernest S. Bulluck and to this marriage five children have been born, represented herein, first by guardian ad litem, and then by their general guardian, R. D. Bulluck, brother of Dr. E. S. Bulluck.

5. The testatrix, while very fond of her grandchildren, disliked her daughter-in-law and was not on speaking terms with her son-in-law. The former is not mentioned in her will, and the latter is excluded from any part in the management of her estate.

With respect to the "marginal" bequest, the first in controversy, the court held that plaintiff's ward, Mary Bell Heyer, was entitled to $30,000 of the investments held by the testatrix in Public Utility stocks at the market value as of January 1, 1934, plus any difference, if any, in cash necessary to make up such deficiency; the same to be held by the executrix, as trustee, until said minor reaches the age of thirty years, the income in the meantime to be paid to plaintiff-guardian. Exception by plaintiff and defendants. The court further held "that this legacy is a vested demonstrative legacy not bearing interest." Exception by plaintiff.

Touching the residuary provision in the will, the next in controversy, the court held:

1. That the executrix should hold the same as trustee during her lifetime "in such way or manner as she sees fit in the full, unrestrained exercise of her discretion, with no limitations or restrictions placed thereon, except that her husband is not to participate in its management." Exception by plaintiff and defendants.

2. That the executrix took no personal interest in her mother's estate. Exception by defendants.

3. That the executrix was to manage the residuary estate, together with its accumulations and income, under the orders of the court, with such compensation as the court should allow, and to turn over the corpus to the grandchildren of testatrix, in equal proportions, per stirpes, "when the youngest grandchild becomes 30 years old." Exception by plaintiff and defendants.

From the judgment thus entered, the plaintiff and defendants appeal, assigning errors.

Marsden Bellamy and Bryan & Campbell, all of Wilmington, for plaintiff.

John D. Bellamy, of Wilmington, for Mary Bell Bulluck.

Emmett H. Bellamy, of Wilmington, for R. D. Bulluck, guardian.

STACY Chief Justice.

The cardinal principle in the interpretation of wills is to discover the intent of the testator, looking at the instrument from its four corners, and to give effect to such intent, unless contrary to some rule of law or at variance with public policy. Jolley v. Humphries, 204 N.C. 672, 169 S.E. 417; Ellington v. Raleigh Savings Bank & Trust Co., 196 N.C. 755, 147 S.E. 286; Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582; Witty v. Witty, 184 N.C. 375, 114 S.E. 482; 28 R.C.L., 211. "The will must be construed, 'taking it by its four corners' and according to the intent of the testator as we conceive it to be upon the face thereof and according to the circumstances attendant. We can derive but little help from adjudicated cases upon facts more or less different from those in this case, for hardly ever can the facts and the language be identical in any two cases. In the construction of a will, therefore, 'every tub stands upon its own bottom,' except as to the meaning of words and phrases of a settled legal purport. The object is to arrive at, if possible, the intention and meaning of the testator as expressed in the language used by him." Clark, C.J., in Patterson v. McCormick, 181 N.C. 311, 107 S.E. 12. This rule has been so often stated and reiterated that Brogden, J., in Clement v. Whisnant, 208 N.C. 167, 179 S.E. 430, 432, 101 A.L.R. 698, laconically remarked: "Of course, it is to be conceded that the intent of the testatrix should be the guide to courts. However, this process of probing the minds of persons long in their graves as to what they meant by words used when they were alive is at best no more than guesswork. Courts and text-writers have undertaken in some instances to make it highly scientific and specialized guesswork, but it remains guesswork nevertheless."

The same thought was expressed by Judge Story in Sisson v. Seabury, Fed.Cas. No. 12,913, 1 Sumn. 235, in somewhat similar fashion: "The difficulty of construing wills in any satisfactory manner, renders this one of the most perplexing branches of the law. The cases almost overwhelm us at every step of our progress; and any attempts even to classify them, much less to harmonize them, is full of the most perilous labor. Lord Eldon has observed, that the mind is overpowered by their multitudes, and the subtility of the distinctions between them. Jesson v. Wright, 2 Bligh, 50. To lay down any positive and definite rules of universal application in the interpretation of wills, must continue to be, at it has been, a task, if not utterly hopeless, at least of extraordinary difficulty. The unavoidable imperfections of human language, the obscure and often inconsistent expressions of intention, and the utter inability of the human mind to foresee the possible combinations of events, must forever afford an ample field for doubt and discussion, so long as testators are at liberty to frame their wills in their own way, without being tied down to any technical and formal language. It ought not, therefore, to surprise us, that in this branch of the law the words used should present an infinite variety of combinations, and thus involve an infinite variety of shades of meaning, as well as of decision."

It is likewise established by the authorities that in determining this intent, the court should place itself as near as practicable in the position of the testator, and where the language is ambiguous, or of doubtful meaning, it should take into consideration his situation, how he was circumstanced and what effect known forces had upon him at the time the will was executed. Raines v. Osborne, 184 N.C. 599, 114 S.E. 849; Ripley v. Armstrong, 159 N.C. 158, 74 S.E. 961; Smith v. Ellington-Guy Lumber Co., 155 N.C. 389, 71 S.E. 445; Freeman v. Freeman, 141 N.C. 97, 53 S.E. 620; Bunting v. Harris, 62 N.C. 11. The rule was stated in Herring v. Williams, 153 N.C. 231, 69 S.E. 140, 141, 138 Am.St.Rep. 659, by Manning,...