McCain v. Womble, 295

• Court: North Carolina Supreme Court
• Writing for the Court: DENNY; In the case of Elmore v. Austin, supra, Ervin; In the last cited case Pearson; In the last cited case, Sharp
• Citation: McCain v. Womble, 144 S.E.2d 857, 265 N.C. 640 (N.C. 1965)
• Decision Date: 24 November 1965
• Docket Number: No. 295,295
• Parties: Nannie Sears McCAIN and husband, Dacus P. McCain, Jr. v. Betty Sears WOMBLE and husband, Bennie Womble, Earl O. Sears and wife, Elsie B. Sears, and Barbara Ann S. Berge and husband, Phil Berge.

Page 857

144 S.E.2d 857

265 N.C. 640

Nannie Sears McCAIN and husband, Dacus P. McCain, Jr. v. Betty Sears WOMBLE and husband, Bennie Womble, Earl O. Sears and wife, Elsie B. Sears, and Barbara Ann S. Berge and husband, Phil Berge.

No. 295.

Supreme Court of North Carolina.

Nov. 24, 1965.

Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, for respondents Sears, appellees.

Evans & Shannonhouse, Rocky Mount, for respondents Berge, appellees.

DENNY, Chief Justice.

This matter was heard by the court below without a jury, a jury having been expressly waived by counsel for all parties. The court heard the evidence and examined the proof offered by the respective parties, found the facts, and entered judgment as hereinabove set out.

Appellants' assignment of error No. 5 is based on an exception to finding of fact No. 10, which reads as follows:

'By their dealings with the lands devised in the residuary clause of Isaac Womble's Will (including the exchange of deeds in 1934 described in paragraph 6 of the petition) the heirs of Isaac Womble, including the parties to this proceeding, have over a period of many years given a practical construction to the term of said Will and Codicil, recognizing between themselves that Mary Womble Sears held a life estate, and that there was a vested remainder in each of the said three children, so that upon the death of any child the children of said deceased child would take the share that their parent would otherwise have received.'

In our opinion, neither the oral evidence nor the documentary proof admitted in the hearing below, supports this findings of fact.

It is true that the quitclaim deed from Ella Calhoun named Mary Womble Sears and her three children as grantees in the deed in which Ella quitclaimed to the grantees her interest in Lot No. 4 of Isaac's land. It clearly appears, however, that this deed was executed for the sole purpose of vesting title to Lot No. 4 in Mary Womble Sears in the exact manner she would have held it under the terms of her father's will and codicil had she been allotted Lot No. 4 of Isaac's land in the partition proceedings, and the deed so stipulates. This deed in no way purports to add to or take from the devise Isaac made to his daughter Mary, but on the contrary purports to vest in Mary a life estate in said Lot No. 4, then, at her death, to go to her next of kin in fee simple.

Now with respect to what Isaac intended by limiting Mary's interest in his estate to an estate for life and after her death to go to her next of kin. Isaac's will must be interpreted from the language used by him and not according to what others might think he meant or what he might have thought the words 'next of kin' meant, unless he had expressed a different meaning with respect thereto.

This Court has repeatedly held that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. This intent is to be gathered from a consideration of the will from its four corners, and such intent should be given effect unless contrary to some rule of law or at variance with public policy. Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; House v. House, 231 N.C. 218, 56 S.E.2d 695; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Mewborn v. Mewborn, 239 N.C. 284, 79 S.E.2d 398; Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465; Strong's North Carolina Index, Vol. IV, Wills, § 27, page 502, et seq.

In the case of Elmore v. Austin, supra, Ervin, J., speaking for the Court said:

'In construing a will, the court seeks to ascertain and carry into effect the expressed intention of the testator, i. e., the intention which the will itself, either explicitly or implicitly, declares. * * * Where the language employed by the testator is plain and its import is obvious, the judicial chore is light work; for, in such event, the words of the testator must be taken to mean exactly what they say. * * * But where the language in the will does not clearly express the testator's purpose, or when his intention is obscure because of the use of inconsistent clauses or words, the court finds itself confronted by a perplexing task. In such case, the court calls to its aid more or less arbitrary canons or rules of testamentary construction designed by the law to resolve any doubts in the language of the testator in favor of interpretations which the law deems desirable. 57 Am.Jur., Wills, sections 1120, 1124; Am.Law Inst.Restatement, Property, Vol. 3, section 243.'

Appellant also assign as error the signing and entry of the judgment on the ground the same is not supported by competent evidence and is erroneous in law.

In Shoup, Smith and Wallace v. American Trust Co., 245 N.C. 682, 97 S.E.2d 111, it is said:

'Ordinarily, extrinsic evidence is admissible to identify persons embraced within a class to whom a devise or bequest has been made. However, in the absence of ambiguous language in the will, extrinsic evidence, either parol or written, may not be admitted 'to vary, contradict, or add to the terms of the will, or to show a different intention on the part of the testator from that disclosed by the language of the will, * * *.' 57 Am.Jur., Wills, section 1040, page 674; Field v. Eaton, 16 N.C. 283; Reeves v. Reeves, 16 N.C. 386; Blacknall v. Wyche, 23 N.C. 94; Kinsey v. Rhem, 24 N.C. 192; Barnes v. Simms, 40 N.C. 392, 49 Am.Dec. 435; Thomas v. Lines, 83 N.C. 191; Wooten v. Hobbs, 170 N.C. 211, 86 S.E. 811; [Wachovia Bank &] Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690, and cited cases; Annotation--Will--Construction--Extrinsic Evidence, 94 A.L.R. 26.'

In the case...