Lee v. Baird

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J. (after stating case).
• Citation: Lee v. Baird, 132 N.C. 755, 44 S.E. 605 (N.C. 1903)
• Decision Date: 06 June 1903
• Parties: LEE et al. v. BAIRD et al.

44 S.E. 605

132 N.C. 755

LEE et al. v. BAIRD et al.

Supreme Court of North Carolina

June 6, 1903

Appeal from Superior Court, Buncombe County; Councill, Judge.

Action by James B. Lee and others against J. R. Baird and others for the construction of a will, etc. From a judgment in favor of plaintiffs, defendants appeal. Modified.

Testatrix bequeathed the proceeds of certain of her real estate to her heirs, and, by a subsequent clause of the will, directed her executors to present statements of advancements to such of her heirs as had received advancements during the life of testatrix or her husband, and, if any of the heirs had received no advancements, to pay to them a sum sufficient to make all of them equal, and to divide the remainder among all of her heirs. Testatrix had made advancements to a daughter who had died prior to the making of the will, and, if such advancements were deducted from the share of such daughter's children, they would be disinherited. Held that the advancements referred to in the will were limited to those made to the persons entitled to take thereunder, and that the grandchildren were therefore not subject to a deduction from their share of advancements made to their deceased mother.

Mrs Eliza T. Baird, late of the county of Buncombe, widow, on the 23d of January, 1884, executed her last will and testament. The portions thereof material to the decision of this case are:

"Item 2. I bequeath unto my daughter, Vickie Baird, all my household and kitchen furniture, to be hers forever, and I bequeath to Vickie during her lifetime my Forest Hill property; and at her death to be sold and divided equally among all of my children."

"Item 4. The balance of the Marr Swamp place to be sold to pay my son Joseph the expenses of the lawsuit on Sec. 9, and if the amount received is more than enough to pay the expenses of the lawsuit, the remainder to be divided among all my children.

Item 5. I request my executors to sell my lots in Asheville and my interest in the Craggy Mountain land and divide the money among all my heirs."

"Item 7. I request my executors to require of my heirs who have received advancements during the life of my husband or myself to present to them an itemized statement of such advancements before they shall receive any payment of the property directed to be sold in my will; and if any of my heirs have received no advancements, to pay to them a sum sufficient to make them all equal, and if any remainder to divide the amount amongst all of my heirs. And if any of my heirs die before my death, leaving heirs, the children of such deceased parent or parents, shall receive jointly the share coming to their parent or parents,--the share he or they would have received if he or they had been living at the date of my death."

At the date of the execution of said will, Mrs. Baird had seven living children. A daughter, Mrs. M. J. Lee, died October 5,

1878, leaving surviving six children. The testatrix had, when she made said will, numerous other grandchildren, children of living children. Victoria A. Baird, mentioned in item 2 of the will, died March 20, 1897, leaving no children. At the date of said will, T. J. Lee, the husband of M. J. Lee, and father of said children, was, and yet is, a man of fine business ability, prosperous, and wealthy, who provided well for his children. His wife had received from the testatrix large sums by way of advancements--exceeding, in all, $3,000 and amounting to more than the advancements which were made by the testatrix to any of her other children prior to her death. The testatrix knew these facts at the time of making her will, and when she died. She was a woman of education and financial capacity, and in full possession of her faculties.

T. H Cobb and F. A. Sondley, for appellants.

Merrimon & Merrimon, for appellees.

CONNOR, J. (after stating case).

This action is brought by the plaintiffs, five of the six children of Mrs. M. J. Lee, against the executors and children of Mrs. Baird, for the purpose of having the said will construed, and for an account of the proceeds of the property directed to be sold, and other relief. His honor, upon the facts found as above stated, adjudged that the property mentioned in the second item, to wit, the Forest Hill property, and that mentioned in items 4 and 5 of said will, became and were by the provisions of said will converted into personal property upon the death of the said testatrix, and were to be distributed as such by the executors named in the will, in accordance with the provisions of the seventh item of the will; that, by the provisions of the seventh item, it became the duty of the executors to require all of the heirs of the testatrix (by whom in said item and said will is meant those who would be entitled to the proceeds of the sales of the said real property under the statute of distributions of the state of North Carolina) to render an account of advancements, and that the said plaintiffs are entitled to receive from the proceeds of the said real property so much as would come to them, or each of them, upon the basis of a per capita distribution. From this judgment the defendants appealed.

Plaintiffs contend, first, that the real property directed to be sold was converted into personalty by the provisions of the will; second, that the word "children," in the will, includes the plaintiffs, who are grandchildren; third, that the word "heirs" is to be construed in the same way. The defendants, on the contrary, contend that the words "all of my children" exclude the plaintiffs from any participation in the proceeds of the Forest Hill property, and that the word "heirs," as used in the other items of the will, shall be construed to mean children, thereby excluding the plaintiffs from any share in the property mentioned in item 5.

In our efforts to adopt a construction of the will of Mrs. Baird, consistent with the rule laid down by the courts to guide them in such cases, we have encountered many and almost insurmountable difficulties. Either construction suggested by counsel for the respective parties, while supported by well-considered arguments and briefs, presents contradictions and leads to results difficult to reconcile with parts of the will. We have given the case anxious and careful consideration. The conclusion to which we have finally arrived is not free from difficulty, and much could be said in support of one or more other views.

The first question presented is, what meaning we shall attach, or we shall assume that the testatrix attached, to the word "children," as used in the second and fifth items of her will. The first proposition laid down by Sir James Wigram in his Rules for the Interpretation of Wills is: "A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed." Lord Cranworth, in Hicks v. Sallitt, 3 De G., M. & Gor. 782, 18 Jar. 915, says: "Where a testator uses a word which has a well-known ordinary acceptation, it must appear very certain that he has stated on the face of the will that he uses it in another sense, before the ordinary sense can be interfered with. In order to alter the meaning of a word, it must appear, not that the testator might have meant it in a different sense, but that he must have meant it in a different sense; and this can only be shown by pointing some inconsistency in different parts of the will, or a positive statement of such being the sense intended, or a reductio ad absurdum by not taking the word in a qualified sense." It is also an elementary rule "that every possible effort should be made by the court to reconcile the clauses seemingly repugnant, and to give effect to the whole will, for the presumption is that the testator meant something by every sentence and word in his will, and no court is justified in rejecting any portion of it until it is positively assured that the portion which it rejects cannot be reconciled with the general intention of the testator as expressed in some other portion of the will; and even when the general rule of repugnancy is applied of necessity, and the latter of the two inconsistent clauses is permitted to prevail over the former, it is a settled rule that the earlier of the two clauses will not be disturbed or rejected any further than is absolutely necessary to carry out the presumed intention of the testator as shown in the whole clause." Underhill on Wills, § 359.

Certainly the use of the words "all of my children" by the testatrix is free from ambiguity, and the uniform current of authority in this and other courts sustains the proposition that they will not be construed to include grandchildren unless from necessity, which occurs when the will would be inoperative unless the sense of the word "children" were extended beyond its natural import, and when the testator has clearly shown by other words that he did not use the term "children" in the ordinary actual meaning of the word, but in a more extensive sense; that this construction can only arise from a clear intention or necessary implication, as where there are no children, but are grandchildren, or where the term "children" is further explained by a limitation over in default of issue. This court, in Denny v. Closse, 39 N.C. 102, says: "The intention of the testator is the governing rule in the construction of wills, upon the principle that the law accords to every man the right to dispose of his property after his death as he shall please. If, therefore, his intention...