Rees v. Williams

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: Rees v. Williams, 165 N.C. 201, 81 S.E. 286 (N.C. 1914)
• Decision Date: 26 March 1914
• Parties: REES ET AL. v. WILLIAMS.

81 S.E. 286

165 N.C. 201

REES ET AL. v. WILLIAMS.

Supreme Court of North Carolina

March 26, 1914

On petition for rehearing. Petition dismissed.

For former opinion, see 164 N.C. 128, 80 S.E. 247.

Rule that death with or without issue, upon which limitation over is conditioned, refers to a death in testator's lifetime held to be applied, if at all, only where a clear intention is manifest to make an absolute gift to the first taker.

This is a petition to rehear the above-entitled case, which was decided at the last term (164 N.C. 128, 80 S.E. 247). The facts are stated in the former report of the case, and need not be fully repeated here. The single question is whether the plaintiffs, as devisees under the will of Mrs. Jennie Lind Lee, can make a good title to the house and lot at the corner of East and Jones streets in the city of Raleigh under their contract with the defendant, Mrs. Charlotte Grimes Williams. We held before that they could not do so, and we are now asked to reverse that ruling. The decision of the question turns upon the construction of Mrs. Lee's will the following items thereof being pertinent to the inquiry:

"1. My house and lot situated on corner of East and Jones streets in Raleigh, N. C., I leave to my daughter, Jennie Lee, also $1,000 worth of stock at present invested in the Gibson Manufacturing Company of Concord, N. C.

2. In case my daughter, Jennie Lee, shall die leaving issue surviving her, then to such issue and their heirs forever but if my said daughter, Jennie Lee, shall die without issue surviving her, then I desire said property to return to my eldest daughter, May Lee Schlesinger, and to my son Harry Lee, to be equally divided between them, or to their heirs, share and share alike.

3. I bequeath my stock in the Commercial and Farmers' Bank in Raleigh, N. C., to be equally divided between my daughter, May Lee Schlesinger, and my son, Harry Lee.

4. I also bequeath the sum of $25, and this sum to be taken from the interest of said properties and to be paid over by my executor as he thinks best to a colored man called John, who waited on my husband during his last illness.

5. I appoint Mr. Henry E. Litchford as my exccutor of this will and with the power to change the investments if he thinks best for the interest of my children; also appoint Mr. Henry E. Litchford guardian of my daughter, Jennie Lee.

6. My son, Harry Lee, is not to have control of his stock, only to spend the interest on it, until he is thirty-five years old, and then said stock is to be turned over to him, if he so desires it."

The will was dated June 30, 1905, and was probated April 13, 1906. Jennie Lee, who has since intermarried with A. S. Rees, Mrs. Schlesinger and her husband, and Harry Lee are the plaintiffs. All the devisees are married. Mrs. Lee has had no children. It does not appear that there were any to the other marriages, nor does it appear when the testatrix died, except by inference, between June 30, 1905, and April 13, 1906. Plaintiffs have duly tendered a good and sufficient deed for the premises, with proper covenants, and filed it with the clerk of the court, to be delivered upon payment of the price agreed upon, to wit, $7,500. The court below held that plaintiffs' deed will convey a good title, and entered judgment accordingly. Defendant appealed. We reversed the judgment here.

WALKER, J. (after stating the facts as above).

The question is whether Mrs. Jennie Lee Rees, formerly Jennie Lee, took a fee simple absolute at her mother's death under the latter's will. The contention of the plaintiff is that at the death of the testatrix Mrs. Rees, as she survived her mother, acquired an absolute estate in fee under the will, as the contingency expressed in the limitation referred to her death, with or without issue, during the testatrix's lifetime, and this is based upon the ground that the will gives her a fee, but, if either of the contingencies, that is, "dying with or dying without issue," should occur, she would be deprived of that estate, and a repugnancy in the terms of the will would arise; the first estate being a fee, and the contingencies upon which it is limited cutting it down to a life estate. But this argument, if otherwise it should be allowed to prevail, is predicated upon the false assumption that the testatrix has given an estate in fee in terms which clearly show an intention to do so. It may be conceded, as contended by learned counsel, that, taking the two clauses together, by which the estate is limited ever upon the contingencies stated, that is, dying with issue then living, or dying without such issue, and reading them in the alternative, as we have done, they exhaust every possible contingency and involve the certainty that Mrs. Rees will have only an estate for her life; but we cannot agree to the deduction therefrom that, in this case, it produces such a repugnancy as requires us to consider the event of her dying as one to take place in the lifetime of the testatrix, so that at her death Mrs. Rees, surviving, took an estate in fee absolute.

There are authorities, we admit, and perhaps many of them, to the effect that, where an estate is given to one in fee, by express terms or clear implication, with a limitation over to others, if the first taker should die with or without issue, the death mentioned is one which must take place in the lifetime of the testator in order to avoid a repugnancy between the two limitations, as otherwise the first taker would get only a life estate, instead of the fee so limited to him. But this doctrine, where it has been applied, is, we are told, restricted to cases where a clear intention is manifest to make an absolute gift to the first taker. Lumpkin v. Lumpkin, 108 Md. 470, 70 A. 238, 25 L. R. A. 1104; Cooper v. Cooper, 1 Kay & J. 658; Gosling v. Townshend, 2 Week. Rep. 23. When the testatrix gave the estate to Mrs. Rees, she did not add words of inheritance, and but for our statute (Pell's Revisal, § 3138) the gift would import only a life estate. That section provides: "When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity." Applying these words to the will, we conclude it plainly appears that Mrs. Lee did not intend to give Mrs. Rees an estate in fee, to become absolute in her daughter at the mother's death, if she were then living, but only such an estate as she would get if, at any time, she should die with or without issue, which, of course, would be substantially a life estate.

We must construe the will as an entirety. It was said in Price v Johnson, 90 N.C. 592, while deciding a similar question: "The first and most important rule in the interpretation of wills, to which all other rules must yield, is that the intention of the testator expressed in his will shall prevail, provided it be not inconsistent with the rules of law. 1 Blk. Rep. 627. A will is defined to be 'the legal declaration of a man's intentions which he wills to be performed after his death.' 2 Blk. Com. 499. These intentions are to be collected from his words, and ought to be carried into effect if they be consistent with law. * * * It is a rule of construction that the whole will is to be considered together, and every part of it made to have effect, so as to effectuate the intention of the testator, and, if there are any apparent inconsistencies in its provisions, it is the duty of the court to reconcile them if possible." It is said that a rule referring the death of the first taker, with or without any issue, to a time during the life of the testator, is extremely technical in its character. "It does not apply where there are indications, however slight, that the testator intended a death without issue occurring subsequent to his death. The rule which construes death without issue to mean death without issue prior to that of the testator is not favored by the courts. * * * In such a case, particularly where, at the date of the execution of the will, any of the primary devisees are unmarried, it may be fairly presumed that the testator had in contemplation a future marriage and birth of issue, and that, intending to keep the property in his family, he meant a death without issue to take place after his death. If, therefore, the primary devisees survive him, they take an estate in fee which is defeasible by their subsequent death without issue." 1 Underhill on Wills, § 348. We are assuming, for the sake of discussion, that the rule upon which plaintiffs rely has heretofore been adopted by us, and, if so, we must yet look at the entire will and there find the true intention of the testatrix. Looking at this will as a whole, and giving effect to all of its parts, we discern clearly an intention of the testatrix not to give to her daughter, Jennie Lee, an estate in fee simple absolute. If the statute (Revisal, § 3138) presumes that she intended such a fee, the presumption is rebutted by subsequent clauses of the will. There is no rule which requires us to reject the later for the earlier clauses of a will. The rule is the other way when they are conflicting. Underhill on Wills, § 357. But we must reconcile them, if it can be done, as the testator is presumed to have intended both to take effect. Id. § 359. We cannot reject either lightly, or without good reason. Underhill, § 359, expresses it well, when he says: "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...