Wachovia Bank & Trust Co. v. Wolfe

• Court: North Carolina Supreme Court
• Writing for the Court: BOBBITT
• Citation: Wachovia Bank & Trust Co. v. Wolfe, 96 S.E.2d 690, 245 N.C. 535 (N.C. 1957)
• Decision Date: 27 February 1957
• Docket Number: No. 523,523
• Parties: WACHOVIA BANK AND TRUST COMPANY, as Executor Under the Will of Addie Hereford Upton, v. Camille H. WOLFE and The American National Red Cross.

Page 690

96 S.E.2d 690

245 N.C. 535

WACHOVIA BANK AND TRUST COMPANY, as Executor Under the Will of Addie Hereford Upton, v. Camille H. WOLFE and The American National Red Cross.

No. 523

Supreme Court of North Carolina.

Feb. 27, 1957

James L. Woodson and H. Nelson, Woodson, Salisbury, for defendant American National Red Cross, appellant.

Clarence Kluttz and Lewis P. Hamlin, Jr., Salisbury, for defendant Wolfe, appellee.

BOBBITT, Justice.

Reference is made to the statement of facts and opinion on said prior appeal. Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246. There is no need to discuss further the reasons why the cause was then remanded. Too, the principles of law then stated will be treated as established without further citation of authority. Suffice to say, we did not then construe the will; nor did we undertake to mark out what portions, if any, of the evidence offered at the first hearing, but not considered by the court, were relevant and competent. See: Collier v. Mills, 45 N.C. 200, 95 S.E.2d 529.

In the construction of the will in the light of 'circumstances attendant' when the will was executed, these well-established rules are pertinent:

1. To ascertain the intent of the testator, the will must be considered as a whole. If possible, meaning must be given to each clause, phrase and word. If it contains apparently conflicting provisions, such conflicts must be reconciled if this may reasonably be done. Williams v. Rand, 223 N. C. 734, 737, 28 S.E.2d 247; Holland v. Smith, 224 N.C. 255, 257, 29 S.E.2d 888; Schaeffer v. Haseltine, 228 N.C. 484, 489, 46 S.E.2d 463; Coppedge v. Coppedge, 234 N.C. 173, 176, 66 S.E.2d 777. As succinctly expressed by this Court in Edens v. Williams, 7 N.C. 27, 31, decided May Term, 1819: 'Every part of a will is to be considered in its construction, and no words ought to be rejected, if any meaning can be possibly put upon them. Every string should give its sound.'

2. When undertaking to reconcile apparently conflicting provisions 'greater regard must be given to the dominant purpose of a testator than to the use of any particular words.' Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 461, 67 S.E.2d 651, 657. If it may reasonably be done, apparently inconsistent subordinate provisions must be given effect in accordance with the general prevailing purpose of the testator. Schaeffer v. Haseltine, supra; Coppedge v. Coppedge, supra.

In our opinion, the words written by Mrs. Upton, considering her will as a whole, show clearly that her dominant purpose was to leave the bulk of her estate to charitable causes. The sentence, 'To my sister Mrs. Camille H. Wolfe, I leave my furniture, household effects and personal property,' is both preceded and followed by dispositive provisions to charitable causes.

Did the testatrix use the words 'personal property' to denote everything she owned except real property? The court below, in accordance with defendant Wolfe's contention answered 'Yes.' We are constrained to hold otherwise, namely, that when used in the context, 'my furniture, household effects and personal property,' the personal property referred to was ejusdem generis, that is, tangible articles of household and personal use.

It is noteworthy that the dispositive words used by the testatrix are 'will and bequeath,' 'will,' and 'leave.' The word 'devise' does not appear.

If the words 'personal property' were construed to denote everything the testatrix owned except real property, no significant meaning can be given to her use of the words 'furniture' and 'household effects.' The concise provisions of her will indicate that the testatrix did not use superfluous words. Meaning is given to these words if we consider the word 'household' as modifying both 'effects and personal property.'

The testatrix, in prior provisions of her will, had left specific charitable legacies, aggregating $11,500, which, if she owned no real property, could be paid only from her then assets, to wit, cash, bonds and securities. It appears, therefore, that the testatrix did not intend to leave to Mrs. Wolfe all of her personal property of every kind and character. It is noteworthy that words such as 'all' or 'all the remainder' nowhere appear in association with the words 'personal property.'

Moreover, if the testatrix owned no real property, the construction for which defendant Wolfe contends would give no significance whatever to the final sentence: 'The balance of my estate I leave to the National Red Cross society of America.' It should be noted that this sentence, rather than the bequest to Mrs. Wolfe, constitutes the residuary clause of the will. Decisions to the effect that, because of the presumption against partial intestacy, the rule of ejusdem generis is not generally applied to a residuary clause, e. g., Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231, have no application here.

We agree with the contention that the socalled rule of ejusdem generis does not arbitrarily control in the construction of a will. While generally referred to as a rule of construction, perhaps it is more accurate to use this expression to denote the construction adopted by the court from the consideration of a will as a whole.

The condition, nature and extent of Mrs. Upton's estate when she made her will are relevant 'circumstances attendant.' Did she own real property then?

Admissions in the pleadings suffice to establish that she owned no real property at the time of her death; and there is no evidence or contention that she acquired or sold any real property after she made her will. Moreover, it appears now from uncontradicted evidence offered by defendant Wolfe that Mrs. Upton owned no real property when she made her will. True, the court's finding was: '12. On October 2, 1951, the testatrix owned no real estate in Rowan County, N.C., or in Orleans Parish, Louisiana. The Court does not consider the evidence satisfactory and does not determine whether she owned any real estate elsewhere.' However, persons intimately associated with her across the years, including defendant Wolfe, testified that they knew of no real estate she had owned, located elsewhere, except a summer cottage in Bay St. Louis, Mississippi, which she had sold in 1948 or prior thereto. It would be fanciful to predicate decision on a speculation that she might have owned some unidentified real property located elsewhere than in the communities in which she had resided when neither her executor nor any of her kin had knowledge or information thereof.

In short, it appears from uncontradicted evidence offered by Mrs. Wolfe that the estate of the testatrix on October 2, 1951, the date of the will, consisted of assets of the kind and character owned by her on August 5, 1953, the date she died, to wit: cash, including bank deposits, bonds and securities.

Testatrix, who had resided in New Orleans, moved to Salisbury in 1948. She purchased a residence on Mitchell Avenue, the only property in North Carolina ever owned by her. After a fire on June 6, 1951, this residence was unfit for use; and, without making repairs, testatrix sold this property on August 25, 1951.

The court made this finding: '11. Following the sale of the Salisbury house, the testatrix consulted a real estate agency and was looking at houses and lots offered for sale in Salisbury at or about the time the will was written and subsequently.' We need not decide whether there is competent evidence to support the implication, if such was intended, that this occurred prior to October 2, 1951, the date of the will. The fact is that testatrix owned no real estate when she made her will. This has significance only as it may enlighten the court as to her intention as expressed in her will. If she had purchased real estate thereafter, the price paid therefor would have depleted the cash, bonds and securities constituting her assets. We cannot accept the suggestion that it was testatrix' intent to leave defendant Red Cross real property, if perchance she should purchase real property, but that in the event she did not do so the residuary clause in favor of defendant Red Cross would be devoid of meaning. No sound reason appears why the testatrix would prefer or intend to leave to defendant Red Cross real estate rather than assets of the kind and character she owned when she made the will.

It is noted that the judgment, from which this appeal is taken, sets forth as findings of fact the following: '15. At the time the will was written, the testatrix understood the term 'personal property' to include cash, bonds, and securities. 16. The testatrix, Addie Hereford Upton, used the term 'personal property' in her will to include cash, bonds, and securities.' These are not findings of fact as to circumstances attendant when the will was made, but rather reflect the court's view as to the proper construction of the will. Whether the testatrix so intended, is the sole question of law presented to the court for decision.

The 'circumstances attendant' when the will was made refer to objective factual data, not to the intent of the testatrix. In short, they are facts of which the testator had knowledge when she made her will; and such facts may or may not aid the court in the construction of the terms thereof.

The intent of the testatrix must be ascertained from her written words. Parol evidence of her declarations is not competent as an aid in the construction of her will, whether made before, after or at the time she made it. Reeves v. Reeves, 16 N.C. 386; Worth v. Worth, 95 N.C. 239; Patterson v. Wilson, 101 N.C. 594, 8 S.E. 341; In re Shelton's Will, 143 N.C. 218, 55 S.E. 705; Raines v. Osborne, 184 N.C. 599, 602, 114 S.E. 849; Holmes v. York, 203 N.C. 709, 166 S.E. 889; Reynolds v. Safe Deposit & Trust Co., 201 N.C. 267, 159 S.E. 416. As stated by Merrimon, J., (later C. J.), in Patterson v. Wilson, supra [101 N.C. 594, 8 S. E. 342]: ...