Wachovia Bank & Trust Co. v. Wolfe

Decision Date03 February 1956
Docket NumberNo. 532,532
Citation91 S.E.2d 246,243 N.C. 469
CourtNorth Carolina Supreme Court
PartiesWACHOVIA BANK AND TRUST COMPANY As Executor Under the Will of Addie Hereford Upton v. Camille H. WOLFE, and The American National Red Cross.

Craige & Craige, clarence Kluttz and Lewis P. Hamlin, Jr., Salisbury, for defendant Wolfe, appellant.

Woodson & Woodson, Salisbury, for defendant American National Red Cross, appellee.

BOBBITT, Justice.

Did the testatrix use the words 'personal property' to denote everything she owned except real property? Defendant Wolfe says, 'Yes.' Defendant Red Cross says, 'No,' contending that when used in the clause, 'I leave my furniture, household effects and personal property,' the 'personal property' in mind was ejusdem generis, that is, tangible articles of household and personal use.

The court, based solely on the will itself and the admissions, construed the will and entered judgment in favor of defendant Red Cross.

The controversy concerns the assets, noted above, now in the hands of the executor. Admittedly, one of the defendants is entitled thereto. Each contends that there is no uncertainty as to the proper interpretation of the will, but the plain meaning thereof as asserted by each is exactly opposite to that asserted by the other. To resolve its dilemma, the executor invokes the advice and instructions of the court, an appropriate course when in such plight.

The situation is this: The assets of the estate and the beneficiaries thereof are identified. The testatrix was a widow, without lineal descendants, and defendant Wolfe is her sister. These facts, nothing else, are established by admissions in the pleadings or by stipulation.

For the reasons stated below, we refrain from construing the will upon the record now before us.

The authority and responsibility to interpret or construe a will rest solely on the court. Its objective is to ascertain the intent of the testator, as expressed in the will, when he made it. Wachovia Bank & Trust Co. v. Green, 239 N.C. 612, 80 S.E.2d 771; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151, 153.

Barnhill, J., now C. J., in Wachovia Bank & Trust Co. v. Waddell, supra, says: 'In ascertaining the intent of the testator, the will is to be considered in the light of the conditions and circumstances existing at the time the will was made. Scales v. Barringer, 192 N.C. 94, 133 S.E. 410; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12.

"* * * the court should place itself as nearly as practicable in the position of the testator * * * at the time of the execution of the will.' In re Will of Johnson, supra (233 N.C. 570, 65 S.E.2d 15).'

Clark, C. J., in Patterson v. McCormick, 181 N.C. 311, 107 S.E. 12, in a sentence frequently quoted, puts it this way: '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 upon the face thereof and according to the circumstances attendant.'

Generally, 'the circumstances attendant' when the will was made refers to the relationships between the testator and the beneficiaries named in the will, and the condition, nature and extent of his property. Hubbard v. Wiggins, 240 N.C. 197, 81 S.E. 2d 630; Heyer v. Bulluck, supra; Herring v. Williams, 153 N.C. 231, 69 S.E. 140; Woods v. Woods, 55 N.C. 420.

It is frequently said, as in Heyer v. Bulluck, supra [210 N.C. 321, 186 S.E. 359], that 'the attendant circumstances' are to be considered 'where the language is ambiguous, or of doubtful meaning'. In such case, the court undertakes 'to put itself in the testator's armchair.' In so doing, as well expressed by Torrance, C. J., in Thompson v. Betts, 74 Conn. 576, 579, 51 A. 564, 566, 92 Am.St.Rep. 235: 'In short, the court may, by evidence of extrinsic facts, other than direct evidence of the intention of the testator, put itself as near as may be 'in the condition of the testator in respect to his property and the situation of his family,' for the purpose of rightly understanding the meaning of the words of his will.'

The admission of evidence of 'the circumstances attendant' to enlighten the court in its task of ascertaining the intent of the testator, as expressed in the will, is quite different from the admission of extrinsic evidence to supply, contradict, enlarge or vary the words of the will.

We advert to the well established rule in relation to the admissibility of extrinsic evidence to explain a latent as distinguished from a patent ambiguity in a writing, be it deed or will. As to deeds, see North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889. As to wills, consideration of the opinion of Pearson, J., later C. J., in North Carolina Institute for the Education of Deaf and Dumb, President, etc., of, Institute v. Norwood, 45 N.C. 65, is appropriate.

As pointed out by Pearson, J., later C. J.: A patent ambiguity presents a question of construction; and 'the only purpose of construction is to find out what the instrument means, and that must depend upon what the instrument says.' A latent ambiguity presents a question of identity-- 'a fitting of the description to the person or thing, which can only be done by evidence outside or dehors the instrument; * * *' Reference is made to the illustrations given. Suffice it to say that, in illustrating what is meant by a patent ambiguity, the instances cited relate to bequests or devises held void because the description of property or of beneficiary was so vague that nothing appeared therein that could be identified by fitting extrinsic evidence to the words used in such description. Thus, where '&c' appeared in the will, this was held a patent ambiguity. Taylor v. Maris, 90 N.C. 619, 624.

Merrimon, J., later C. J., in McDaniel v. King, 90 N.C. 597, 602, says: 'If a will is sufficiently distinct and plain in its meaning as to enable the court to say that a particular person is to take, and that a particular thing passes, that is sufficient; and it must be construed upon its face without resorting to extraneous methods of explanation to give it point. Any other rule would place it practically within the power of interested persons to make a testator's will, so as to meet the convenience and wishes of those who might claim to take under it.' For additional citations, see Reynolds v. Safe Deposit & Trust Co., 201 N.C. 267, 277-278, 159 S.E. 416.

Ordinarily, the word 'estate,' unless restricted by the context, embraces a testator's entire property, real and personal. Harrell v. Hoskins, 19 N.C. 479; Hunter v. Husted, 45 N.C. 141; Foil v. Newsome, 138 N.C. 115, 50 S.E. 597; 57 Am.Jur., Wills sec. 1337. Yet in its primary, technical sense it may refer only to the degree, quantity, nature and extent of a person's interest in land. Bond v. Hilton, 51 N.C. 180.

Our decisions fully justify the statement of Rodman, J., in Wilson v. Board of Aldermen of City of Charlotte, 74 N.C. 748, viz.: 'The word 'property' is not such a technical one that if properly used it has everywhere the same precise and definite meaning. Its meaning varies according to the subject treated of and according to the context.' This is equally true in respect of the words, 'personal property.' Annotations: 'What passes under term 'personal property' in will.' 137 A.L.R. 212; 162 A.L.R. 1134. 'Every expression to be correctly understood ought to be considered with a view to the circumstances of its use.' Stacy, C. J., in Heyer v. Bulluck, supra.

The definition of 'personal property' in G.S. § 12-3(6) embraces 'choses in action and evidences of debt, including all things capable of ownership, not descendable to heirs at law.' This definition is expressly applicable to the construction of statutes. Even so, it is not applicable in that connection if 'such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the same statute'.

In the will before us, there is no latent ambiguity. There is no question of identifying a beneficiary or a particular property by fitting the person or thing to the description. There is no suggestion that any provision of the will is void for vagueness of description either of beneficiary or of property.

The controversy turns on the sense in which the testatrix used the words 'personal property.' The ambiguity appears on the face of the will. The court must ascertain and declare the intent of the testatrix. The will, in its entirety, and the facts constituting 'the circumstances attendant' when made, are to be considered. We hold, therefore, that the court was in error in refusing to consider evidence tending to show 'the circumstances attendant.' What bearing, if any, they will have in interpreting the sense in which the testatrix used the words, 'personal property,' is not presently before us. This must be determined, in the first instance, by the trial court.

Appellee contends that the 'excluded evidence,' when considered in the light most favorable to defendant Wolfe, supports the construction of the will made by the court. The court below did not consider such evidence. Nor do we consider it.

Barnhill, J., now C. J., in Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888, 892, in words apposite here, says:

'Why doesn't this court perform this judicial function and be done with it? Simply because this court possesses no original jurisdiction in such matters. Its duty is to review the decisions of the superior courts of the State. The court below must exercise its original jurisdiction. If the parties are not then satisfied with the judgment entered they may bring the cause back for review.'

Nor is it appropriate for us to attempt to make out what portions of the 'excluded evidence' would be competent for consideration by the court below, should the same evidence be offered at the next hearing. Grandy v....

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