Van Winkle v. Catholic Missionary Union

• Decision Date: 09 June 1926
• Docket Number: 557.
• Citation: 133 S.E. 431,192 N.C. 131
• Parties: VAN WINKLE v. CATHOLIC MISSIONARY UNION et al.
• Court: North Carolina Supreme Court

133 S.E. 431

192 N.C. 131

VAN WINKLE v. CATHOLIC MISSIONARY UNION et al.

No. 557.

Supreme Court of North Carolina

June 9, 1926

Appeal from Superior Court, Buncombe County; W. B. Snow, Special Judge.

Action by Kingsland Van Winkle, as substituted trustee under the will of Mary W. Byrne, deceased, and executor of the will of Rose M. Byrne, deceased, against the Catholic Missionary Union and others. From the judgment, plaintiff appeals. Affirmed.

Clause giving "all rest, residue and remainder of all my property" to religious institution being a residuary clause, and demise to another having lapsed held that residuary legatee received devised property.

The judgment contains the facts material to the controversy. These facts are set out in the judgment as follows:

"That Mary W. Byrne, late of Asheville, N. C., died on or about February 19, 1913, leaving a last will and testament and codicil thereto, which were duly admitted to probate in said Buncombe county, N. C., on the 17th day of March 1913, and are duly recorded in the office of the clerk of the superior court of said county, in Will Book C, p. 483 et seq., a certified copy of which is set forth in the record in this case, and the plaintiff, Kingsland Van Winkle, is duly substituted and acting trustee under the said will.

"That the said testatrix, Mary W. Byrne, left surviving her one child, Rose M. Byrne, who died on the 29th day of July 1924, without ever having been married and without leaving issue, and leaving a last will and testament in which the plaintiff, Kingsland Van Winkle, was named as executor, and who has duly qualified as executor of the said last will and testament.

"The question presented upon the record in this case is the construction of the will of Mary W. Byrne as to the disposition upon the death of Rose Mary Byrne of the remainder of the trust estate created by the provisions of the second paragraph of the said will of Mary W. Byrne, in the following words:

"'If my said daughter, Rose Mary Byrne, shall survive me I give all said property, or the proceeds thereof, one-half to my said daughter absolutely forever free from the control of any husband; and the other half to the trustee hereinafter named in trust to invest and reinvest,' etc., 'and upon the death of my said daughter I give any then remaining principal of said trust to her issue, then surviving, absolutely forever; or if she shall leave no issue surviving her, then I give said then remaining principal to the same legatees as hereinafter provided for the residuary of my estate in the event that my said daughter shall not survive me nor leave issue surviving me.'

"By paragraph 3 of the will the testatrix provides as follows:

"'If my said daughter shall not survive me, but shall leave issue surviving me, I give all my property and the proceeds thereof to her said issue, absolutely forever.

"'It is my will that if any questions shall arise in construing this will, all doubts shall be resolved in favor of my said daughter, and her issue, if any.'

"By the fourth paragraph of the will the testatrix provides:

"'If my said daughter shall not survive me nor leave issue surviving me, then I give to' (certain named legatees certain pecuniary and specific bequests).

"By the fifth paragraph of the will the testatrix provides:

"'All the rest, residue and remainder of all my property or the proceeds thereof, including any legacies that may lapse or for any other reason be ineffective, I give (if neither my said daughter nor issue of her shall survive me) to the above named Apostolic Mission House for the purpose of its incorporation, and request that said legacy be known as "the Byrne Fund for the Propagation of the Faith."'

"The court is of opinion, and so holds, that construing and interpreting the will from the language of the instrument as a whole to ascertain and arrive at the intention of the testatrix, and applying the rules of construction laid down and announced by the courts, the intention of the testatrix was, and the will shall be so construed, that upon the death of Rose Mary Byrne without issue, the said trust estate went to the legatee named in the fifth clause or paragraph of the will, to wit, Apostolic...