Patterson v. McCormick

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Patterson v. McCormick, 181 N.C. 311, 107 S.E. 12 (N.C. 1921)
• Decision Date: 04 May 1921
• Docket Number: 411.
• Parties: PATTERSON ET AL. v. MCCORMICK ET AL.

107 S.E. 12

181 N.C. 311

PATTERSON ET AL. v. MCCORMICK ET AL.

No. 411.

Supreme Court of North Carolina

May 4, 1921

Appeal from Superior Court, Scotland County; McElroy, Judge.

Suit by D. A. Patterson and others against Sallie E. McCormick and others.

This is a controversy over the construction of item 3 in the will of Hugh L. Patterson. A jury trial was waived, and from the judgment of the court, both parties appealed. Affirmed.

Hoke J., dissenting.

Where testator willed a plantation after the death of his mother to his two nephews to be equally divided between them, in case both or either died without issue, the property to go to the heirs of testator's deceased brother and the husband of a deceased sister and to the surviving nephew, as the case might be, to be equally divided between them, testator did not intend in any way to reduce the half given to either of his nephews if the other should die, but intended to dispose of the half of the deceased nephew, or, if both of them died without issue, to dispose of the whole of it to the secondary beneficiaries, and, one of the nephews having died without issue, the property was to be divided equally between the heirs indicated, the heirs of testator's deceased brother receiving a third of the dividend of the deceased nephew, the heirs of the husband of testator's deceased sister receiving a third, and the surviving nephew a third.

Cansler & Cansler, of Charlotte, and Russell & Weatherspoon, of Laurinburg, for plaintiffs.

C. W Tillett, of Charlotte, McLean, Varser, McLean & Stacy, of Lumberton, Cox & Dunn, of Laurinburg, and McIntyre, Lawrence & Proctor, of Lumberton, for defendants.

CLARK C.J.

This case was before the court at fall term, 1918, Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401. The main question then was whether the plaintiffs owned any interest in the Hugh L. Patterson plantation, and the court held that "upon the death of John D. Jowers the title of the plantation in question vested absolutely in the plaintiffs as the children of Archibald and Gilbert Patterson, and the defendants, the purchasers from Clem Jowers." Upon this trial in the superior court it was agreed between the parties, as appears in the record, that there was presented only the question of the quantum of the share belonging to the plaintiffs and the quantum belonging to the defendants in the plantation upon a proper construction of item 3 of the last will and testament of Hugh L. Patterson. The plaintiffs contended that they were entitled to two-thirds of the plantation, while the defendants contended that they were entitled to three-fourths of the plantation. The court below held that the plaintiffs are entitled to only one-third of the plantation, and that the defendants are entitled to two-thirds.

The sole question presented is the construction of said item 3 of the will, which is as follows:

"After the death of my mother, I will and bequeath the plantation above mentioned to my nephews, John D. and Clem Jowers, to be equally divided between them. In case they or either or them die without issue, it is my will that the property herein bequeathed shall go to the heirs of Archibald and Gilbert Patterson, and to the surviving brother, John D. or Clem Jowers, as the case may be, to be equally divided between them."

John D. and Clem Jowers were nephews of the testator, being children of a deceased sister. Archibald Patterson was a deceased brother of the testator, and left surviving six children. Gilbert Patterson was the husband of Margaret Patterson, a deceased sister of the testator, and left surviving six children. The Jowers boys and all the Patterson children were minors at the time of the execution of the will and the death of the testator. The plaintiffs are the children now living of Archibald and Gilbert Patterson. The defendants are the purchasers from Clem Jowers.

The will must be construed, "taking it by its four corners" and according to the intent of the testator as we conceive it to be...