House v. House

• Citation: 231 N.C. 218,56 S.E.2d 695
• Decision Date: 14 December 1949
• Docket Number: No. 455.,455.
• Parties: HOUSE. v. HOUSE et al.
• Court: United States State Supreme Court of North Carolina

56 S.E.2d 695

231 N.C. 218

HOUSE.

v.HOUSE et al.

No. 455.

Supreme Court of North Carolina.

Dec. 14, 1949.

Nymphus Green House sued Joseph Thomas House, and wife, and others, for sale of lands for partitions. Mrs. Dorcas Sealey, and others, intervened.

The Superior Court, Wake County, Luther Hamilton, Emergency Judge, rendered a judgment adverse to intervenors and interveners appealed.

The Supreme Court, Denny, J, affirmed the judgment, holding that under a will and in view of statute, a daughter of testator took land devised to her, in fee, upon death of testator's wife who was life tenant, defeasible upon daughter's dying without issue either before or after death of testator's wife.

Barnhill, J., dissented.

This is an action begun as a special proceeding before the Clerk of the Superior Court of Wake County, for the sale of lands for partition.

Mrs. Dorcas Sealey and husband, Wade Sealey, Mrs. Estelle Richards and husband, D. E. Richards, Mrs. Otelia Ferrell and husband, W. R. Ferrell, and Mrs. Metta Straughn, were allowed to intervene and file pleadings.

The interveners allege that the devise of lands to Martha Virginia Paschal, under the will of Thomas Wesley House, was a devise in fee simple and that upon her death, the title to the lands vested in her heirs at law and next of kin.

Thomas Wesley House died leaving a last will and testament, which was duly probated in Wake County. He devised all his lands to his wife Louisa Jane House, for life; then to his children in the manner set forth in Item Five of his will, which reads as follows:

"Item Five: --At the death of my wife, the land hereinafter described of which I may die seized and possessed, shall be divided among my living children, and if one of them is dead, leaving children then these children shall have the share of their parent. My daughters, to-wit: Dorcas Anne Ceily, wife of Wade Ceily, Martha Virginia Paschal, wife of Edward Paschal, Otelia Sunshine Ferrell, wife of Walter Ferrell, at the death of their mother shall have their shares of the land herein bounded and described in fee simple forever. My sons, to-wit: Nimfus Green, Ezra Lyman and Harper Hillman shall each have their share of the land in fee simple forever. And if either one of my daughters shall die without issue, their share of the land shall be equally divided among these three of my sons (sic).

"My daughter, Meta Mason Straughan, wife of Elias Straughan, shall have use of the land hereinafter given to her, and all the rents and profits arising therefrom so long as she may live, and at her death, the same shall be equally divided among her children and held by them in fee simple forever."

Item Seven of the will describes by metes and bounds the lands devised to each of the devisees; a tract of 41-¹/₃ acres having been devised to Martha Virginia Paschal.

The life tenant is dead, and upon her death the devisees named in Item Five, went into possession of the respective tracts of land designated for them in Item Seven of the will.

Martha Virginia Paschal died intestate and without issue, in June, 1948.

This cause came on for hearing below, and his Honor held that the devise to Martha Virginia Paschal in fee, was not absolute, but defeasible upon her death without issue, and that upon her death without issue, the title to the said 41-¹/₃ acres of land became vested in Nymphus Green House, Ezra Lyman House and Harper Hillman, as provided in said will.

The interveners excepted to this ruling and appealed, assigning error.

Brassfield & Maupin, Raleigh, for appellants.

Douglass & McMillan; Bickett & Banks and Robert L. McMillan, Jr., Raleigh, for appellee.

DENNY, Justice.

The paramount aim in the interpretation of a will is to ascertain, if possible, the intent of the testator, considering the instrument as a whole, and to give effect to such intent, unless contrary to some rule of law or at variance with public policy. Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Culbreth v. Caison, 220 N.C. 717, 18 S.E.2d 136; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Heyer v. Bulluck, 210 N.C. 321, 189 S.E. 356. And, it is permissible, in order to effectuate or ascertain a testator's intention, for the Court to transpose words, phrases, or clauses. Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff, 195 N.C. 624, 143 S.E. 210; Gordonv. Ehringhaus, 190 N.C. 147, 129 S.E. 187; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Baker v. Pender, 50 N.C 351.

Also, generally speaking, when a will is sufficiently ambiguous to permit construction, the courts favor the early vesting of estates, and the first taker of an estate by will is ordinarily to be considered as the primary object of the testator's bounty. Weill v. Weill, 212 N.C. 764, 194 S.E. 462; Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Goode v. Hearne, 180 N.C. 475, 105 S.E. 5; Citizens' Bank v. Murray, 175 N.C. 62, 94 S.E. 665; Whitfield v. Douglas, 175 N.C. 46, 94 S.E. 667.

The real question, therefore, submitted for our decision on this appeal, is simply this: Did the testator devise to his daughter, Martha Virginia Paschal, an estate in fee simple, or a defeasible fee?

The appellants contend that it was the intent of the devisor to devise the lands described by metes and bounds in Item Seven of his will, in fee simple to his three daughters, Dorcas Anne Sealey, wife of Wade Sealey, Martha Virginia Paschal, wife of Edward Paschal, and Otelia Sunshine Ferrell, wife of Walter Ferrell, should they survive their mother, the life tenant; and, that it was only in the event of the death of either one or more of the designated daughters without issue, prior to the death of the life tenant, that the testator intended for the share of such deceased daughter to be equally divided among the three sons, citing Whitley v. Mclver, 220 N.C. 435, 17 S.E.2d 457.

On the other hand, the appellees contend that the "dying without issue" is referable to the death of the first taker of the fee and not to the death of the life tenant. G.S. § 41-4; Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401; Rees v. Williams, 165 N.C. 201, 81 S.E. 286; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Dawson v. Ennett, 151 N.C 543, 66 S.E. 566; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435, 6 Am.St.Rep. 574; Galloway v. Carter, 100 N.C. 111, 5 S.E. 4; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E. 430.

This appeal turns largely upon the construction given as to the time the testator intended these words in Item Five of his will, to be applicable: "And if either one of my daughters shall die without issue, their share of the land shall be equally divided among these three of my sons." In the absence of a plainly expressed intention to the contrary, appearing in the will, the above words must be construed in the light of the Act of 1827, now G.S. § 41-4, which reads as follows: "Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it: Provided, that the rule of construction contained in this section shall not extend to any deed or will made and executed before the fifteenth of January, one thousand eight hundred and twenty-eight."

Many of our early decisions, decided before the Act of 1827, now G.S. § 41-4, as well as later cases construing deeds and wills executed prior to its enactment, support the contention of the appellants. See Rice v. Satterwhite, 21 N.C. 69; Brown v. Brown, 25 N.C. 134; Hilliard v. Kearney, 45 N.C. 221; Gibson v. Gibson, 49 N.C. 425, and other cases cited and discussed by Clark, C.J, in Patterson v. McCormick, supra.

In this latter case the testator devised the property in question to his mother for life and disposed of the fee in the following language: "After the death of my mother I will and bequeath the plantation above mentioned to my nephews John D. and Clem Jowers, to be divided equally between them. In case they or either of them die without issue, it is my will that the property herein bequeathed shall go to the heirs of Arch'd and Gilbert Patterson and to the surviving brother John D. or Clem Jowers, as the case may be, to be equally divided between them." The life tenant died and the nephews went into possession of the property. Thereafter, John D. died without leaving issue surviving him. Therefore, the facts raised the identical question of construction that is presented on this appeal; and the heirs of John D. Jowers took the position that since he survived the life tenant, he took the property in fee simple; but the Court held otherwise, and said: "The act of 1827 has been construed by this court at least 26 times, beginning with Tillman v. Sinclair, 23 N.C. 183 (decided in 1840), and ending with Kirkman v. Smith, 175 N.C. 579, 96 S.E. 51, and in every case in which it has come before the court for construction it has uniformly been held that 'dying without heirs or issue, ' upon which a limitation over takes effect, is referable to the death of the first taker of the fee without issue living at the time of his death, and not to the death of any other person or to any intermediate period", citing the twenty-six cases. See also these additional cases, which are in accord with the above opinion: Ex parte Rees, 180 N.C. 192, 104 S.E. 358; Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Ziegler v. Love, 185 N.C. 40, 115 S.E. 887; Vinson v. Gardner, 185 N.C. 193, 116 S.E. 412; American...