Hinson v. Hinson

• Decision Date: 04 December 1918
• Parties: HINSON v. HINSON.
• Court: North Carolina Supreme Court

97 S.E. 465

176 N.C. 613

HINSON v. HINSON.

Supreme Court of North Carolina

December 4, 1918

Appeal from Superior Court, Union County.

Action by Fred E. Hinson, by next friend, Mary Hinson, against Brady Hinson, executor of Moses Hinson, deceased. Commenced before a justice of the peace, and tried in the superior court on appeal on an agreed statement of facts. Judgment for plaintiff, and defendant appeals. Reversed.

The words "a year" in a will, relative to charge on estate as compensation for care of widow, are not synonymous with "annually," but are used as means of fixing rate.

Under provision of will, giving estate to wife for life with remainder to the two sons, that whichever son will stay with and take care of wife "during her life" shall receive $100 a year to be paid out of estate, there is no right to compensation till her death.

This is an action to recover $200, commenced before a justice of the peace, and tried in the superior court, on appeal on an agreed statement of facts.

The claim of the plaintiff is based on paragraph 5 of the will of Moses Hinson, which is as follows:

"My will and desire is that whichever one of my sons that will stay with and take care of my wife during her life shall receive the sum of one hundred dollars a year, to be paid out of my estate."

The plaintiff, Fred E. Hinson, is one of the sons of said Moses Hinson, and remained in the home of the widow, Mary Hinson after the death of the testator, for more than two years before the bringing of this action, and in compliance with the will of his father "took care of" the widow. Upon demand made on the executor for the sum of $200 the executor declined to pay the plaintiff anything for his services.

The testator died on February 25, 1916, and this action commenced on February 28, 1918. The widow is still living.

It is found as a fact, by agreement of parties, that at commencement of this action the plaintiff was entitled to recover the sum of $200, if anything.

Judgment was rendered in favor of the plaintiff, and the defendant appealed.

R. B Redwine and John C. Sikes, Jr., both of Monroe, for appellant.

Stack & Parker, of Monroe, for appellee.

ALLEN J.

In construing wills every part is to be considered, and no words ought to be rejected if any meaning can possibly be put upon them; the instrument is to be dealt with as one act apparently inconsistent provisions must be reconciled if it can reasonably be done (Satterwaite v. Wilkinson, 173 N.C. 40, 91 S.E. 599); when language is used having a clearly defined legal signification, it must be given its legal meaning and effect; and the first taker is regarded as the primary object of the testator's bounty ( Whitfield v. Douglas, 175 N.C. 48, 94 S.E. 667).

Applying these principles, we find in the will before us the word "estate," which has been held to include land ( Powell v. Wood, 149 N.C. 238, 62 S.E. 1071), "to be paid out of my estate," which creates a charge on land (Bray v. Lamb, 17 N.C. 372, 25 Am. Dec. 718), and "a year," which has been held not to be synonymous with "annually" and to be used as a means of fixing the rate of compensation (Edwards v. Railroad, 121 N.C. 491, 28 S.E. 137).

The will, then, in the light of these authorities, would read:

"Whichever one of my sons that will stay with and take care of my wife during her life shall be paid at the rate of $100 a year, and this shall be a charge on my personal and real property."

The testator gave the whole of his estate to his wife for life expecting her to be supported out of the income, and in the fifth item he was making provision for the care and attention which a son in the home could give without any considerable tax on his time, and the item does not include strangers, but is confined to sons, who would be moved by other considerations than the amount of money paid, and to whom their father gave all his property after the death of their mother. Can it be possible under these conditions, with the support of his wife during her life the paramount and...