Hubbard v. Wiggins

• Decision Date: 05 May 1954
• Docket Number: No. 458,458
• Citation: 240 N.C. 197,81 S.E.2d 630
• Parties: HUBBARD, v. WIGGINS et al.
• Court: North Carolina Supreme Court

Page 630

81 S.E.2d 630

240 N.C. 197

HUBBARD, v. WIGGINS et al.

No. 458

Supreme Court of North Carolina.

May 5, 1954

J. C. B. Emringhaus, Jr., Raleigh, for defendant-appellant.

Parker & Sink, Raleigh, for plaintiff-appellee.

Lassiter, Leager & Walker, Raleigh, and Ballard S. Gay, Jackson, for appellees John William Archer, and others.

A. L. Purrington, Jr., Raleigh, guardian ad litem.

DENNY, Justice.

The one question to be determined on this appeal is whether the testatrix intended to give J. Samuel Hubbard the three $100 U. S. Bonds, Series D, which were payable to her or J. Sam Hubbard, and $100; or did she intend to give him the six $1,000 U. S. Bonds, Series D, payable to herself, Mrs. Christian Gay Pate, and $100?

We are not inadvertent to the fact that if the testatrix in the instant case had died intestate, J. Samuel Hubbard would have been entitled to the three $100 U. S. Bonds, Series D, as a matter of law. Ervin v. Conn, 225 N.C. 267, 34 S.E.2d 402; Watkins v. Shaw, 234 N.C. 96, 65 S.E.2d 881. There is also a presumption recognized by the courts in construing wills that a testator intended only to dispose of property owned by him and did not intend to include in a devise or bequest any property over which he did not have the power of testamentary disposition. 57 Am.Jur., Wills, section 1163, page 760; Commercial National Bank of Charlotte v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310. It is not unusual, however, for persons to misconceive the extent of their testamentary rights and to undertake to dispose of property over which they have no power of testamentary disposition. Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45; Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183.

We must remember, however, that in the interpretation of a will to ascertain the intent of the testator, neither presumptions nor technical rules of construction, as distinguished from rules of law applicable to the construction of wills, such as the rule in Shelly's case or the rule against perpetuities, will be permitted to overrule the evident intent of the testator, either expressly or by necessary implication, gathered from the language of the will as a whole. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Wachovia Bank & Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177; Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651.

In 57 Am.Jur., Wills, section 1135, page 731, et seq., we find this statement: 'The one rule of testamentary construction to which all others are servient and assistant, it has been said, is that the meaning intended by the testator is to be ascertained and given effect in so far as legally possible. The testatorial intention will control any arbitrary rule, however ancient may be its origin, * * *.'

The court below being of the opinion that the provision in the will with respect to the disposition of the bonds is ambiguous, admitted testimony, over the objection of the appellant, to show the extent of the personal contacts of the testatrix with her relatives who were named as beneficiaries in her will.

The appellant assigns as error the admission of the evidence referred to above, which, in sum and substance, discloses that her sister, Nell Gay White, and her husband, John E. White, lived in the home of the testatrix from the time of their marriage in 1931 until the death of Mrs. Pate; that Mrs. White is the sister referred to in line 13 of the will, who was to continue to live in the decedent's home for two years after Mrs. Pate's death; that Dorothy Gay White (now Dorothy Gay White Watkins), who was named as co-executrix of Mrs. Pate's will, is the daughter of Mr. and Mrs. John E. White and was born and reared in the Pate home. (She qualified as co-executrix of Mrs. Pate's will but later married and moved to Meridian, Miss., and was permitted by the court to resign.) That Mrs. Pate from time to time visited J. Samuel Hubbard, a nephew, Nita H. Davis (Juanita Hubbard Davis), a niece, Mrs. Lizzie Hubbard, a niece by marriaged, and James A. Wiggins, a nephew. That J. Samuel Hubbard visited Mrs. Pate several times while the Whites lived in her home; so did James A. Wiggins; that Lizzie Hubbard visited her more often than anyone else, and that Lizzie Hubbard was the only relative that visited Mrs. Pate during the last two or three years of her life.

In our opinion, irrespective of whether the will of Mrs. Pate is ambiguous or doubtful in the respect contended by the appellees, this evidence was not prejudicial to the appellant. It simply tends to show that the personal contacts of Mrs. Pate with her relatives, the objects of her bounty, were limited largely to those with the Whites who lived in her home, J. Samuel Hubbard and his sister Nita H. Davis (Juanita Hubbard Davis) of Petersburg, Virginia, Mrs. Lizzie Hubbard of Emporia, Virginia, and James A. Wiggins of West Greene, Georgia.

In seeking to discover the intent of a testatrix, when the language used is ambiguous or of doubtful meaning, it is proper for the court to take into consideration the circumstances surrounding the execution of the will, including the condition, nature, and extent of her property, her relationship to her family and to the beneficiaries named in the will so as nearly as possible to get her viewpoint at the time the will was executed. 57 Am.Jur., Wills, section 1144, page 741 et seq.; Herring v. Williams, 153 N.C. 231, 69 S.E. 140, 138 Am.St.Rep. 659; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Haywood v. Rigsbee, supra; Anderson v. Bridgers, 209 N.C. 456, 184 S.E. 78; Heyer v. Bulluck, supra; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Wachovia Bank & Trust Co. v. Board of National Missions, 226 N.C. 546, 39 S.E.2d 621.

In Cannon v. Cannon, supra, the late Chief Justice Stacy said [225 N.C. 611, 36 S.E.2d 20]: 'The intention of the testatrix is her will. This intention is to be gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent. In interpreting the different provisions of a will, the courts are not confined to the literal meaning of a single phrase. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention.' Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613; Weathers v. Bell, 232 N.C. 561, 61 S.E.2d 600; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12; Wachovia Bank & Trust Co. v. Waddell, supra; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578.

It is apparent that the testatrix was a person of very limited education, who undertook to write her own will. Generally speaking it would seem that she had in mind a rather comprehensive and elaborate plan for the disposition of her estate, but did not have sufficient experience and training in such matters to make her intent in respect to certain bequests either clear or effective. She had forty-six nieces and nephews and great-nieces and great-nephews, four of whom she excluded; two living brothers, and one sister; she made bequests to forty-five of these relatives. Except for those rendering service in connection with the administration of her estate, and Dorothy Gay White (now Watkins), who was reared in her home, all were treated substantially alike unless J. Samuel Hubbard is to take all of her bonds in the aggregate sum of $6,300, and $100, plus $200 along with the other nieces and nephews, great-nieces and great-nephews (except those expressly excluded), in the division of the proceeds from the sale of her home.

The testatrix had two sets of bonds in different envelopes, one containing $300 par value, and the other $6,000 par value. The $300 in bonds in the name of the testatrix and J. Sam Hubbard, and $100 in cash, would be the largest amount given to any of her relatives other than those connected with the administration of her estate, except the sum of $500 bequeathed to James A. Wiggins, who, according to the record, is a Methodist minister; $500 to her sister Nell Gay White, who lived in her home; and $500 to her niece, Lillie Vick, to enable her 'to buy thing that she really need.' Lillie Vick, according to the pleadings, has six children, while J. Samuel Hubbard has no children. Moreover, if this testatrix knew that she did not have the testamentary power to dispose of the $300 in bonds because they were made payable to her and J. Sam Hubbard, but intended to give him the $6,000 in bonds, it is rather strange and unusual that she would have added '& on Hundred Dollars,' to this very large and disproportionate bequest.

Furthermore, later in her will this statement appears, '& I want fifteen hundred dollars in saving Bonds for flowers to the graves.' Ordinarily where a definite and certain devise or bequest is made and some part of the same property is disposed of in a later part of the will, the original devise or bequest is only reduced to the extent necessary to comply with the later provision in the will. 57 Am.Jur., Wills, section 1128, page 721 et seq. But, since there is some uncertainty or doubt as to what bonds the testatrix intended to include in the bequest to J. Samuel Hubbard, the court has the right to consider the later bequest or reference to savings bonds, on the question as to whether she intended to include the $6,000 in bonds in her bequest to him.

It is unfortunate that the court was not given any information as to the extent of the testatrix' estate. It was entitled to such information. Often the knowledge of the...