Westfeldt v. Reynolds

• Decision Date: 27 May 1926
• Docket Number: 532.
• Parties: WESTFELDT v. REYNOLDS et al.
• Court: North Carolina Supreme Court

133 S.E. 168

191 N.C. 802

WESTFELDT v. REYNOLDS et al.

No. 532.

Supreme Court of North Carolina

May 27, 1926

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

Civil action to construe a will, brought by Jenny Fleetwood Westfeldt, individually, and as executrix and trustee of the last will and testament of Jenny Westfeldt, deceased, against Christine Reynolds and others. From a judgment construing the will, Lulie Westfeldt and others appeal. Modified and affirmed.

Adams and Connor, JJ., dissenting.

In absence of contrary intent of testator, where alternative is to adopt time of testator's death or time of devisee's death as time at which defeasible estate created by will may become absolute, time of testator's death will ordinarily be adopted.

Civil action to construe the will of Jenny Westfeldt, deceased submitted on an agreed statement of facts.

The will consists of three paper writings, executed at different times, and contains the following material provisions:

(1) "Rugby Grange, Dec. 22, 1914. If anything happens to me take care of Lulie and Jenny and let my portion of the Rugby Grange property go to them equal parts for each."

(2) "Frankfort, Ky., May 22, 1915, and Sept. 30, 1915. I leave to Lulie Westfeldt, daughter of Patrick Westfeldt, the half of my property and to Jenny Fleetwood Westfeldt the other half-to revert to Lulie Westfeldt in case of Jenny Fleetwood Westfeldt's decease-and should Lulie Westfeldt die without heirs the property to go over to Overton Westfeldt Price's children. I leave to Christine Price $1,000 and to Christine Reynolds $1,000."

P. S "Dear Jenny F. carry out my wishes."

(3) "Jan. 25 (1916 or later). I want $3,000.00 paid to Christine Reynolds and $3,000 to my sister Christine W Price. And if Hunt's gold mine is a success and takes good care of Jenny F. Westfeldt the rest of my property I leave to Lulie Westfeldt. If the gold mine proves not a success I leave my property as I wrote before."

Hunt's gold mine proved not a success. The testatrix left sufficient property to pay all specific bequests or legacies, with considerable property remaining for distribution under the remaining provisions of her will. Jenny Fleetwood Westfeldt and Lulie Westfeldt were favorite nieces of the testatrix. The former at the time of the execution of the will was 48 years of age and unmarried; the latter 20 years of age, unmarried, and a sufferer of infantile paralysis. Both survived the testatrix.

His honor held: (1) That the specific bequests of $1,000 and $3,000 to Christine Reynolds and the specific bequests of $1,000 and $3,000 to Christine Price are cumulative, giving each $4,000; (2) that Jenny Fleetwood Westfeldt and Lulie Westfeldt each take a one-half undivided interest in fee in the Rugby Grange property under the first devise; and (3) that Jenny Fleetwood Westfeldt is the owner in fee of a one-half undivided interest in the remainder of the estate by virtue of the second devise; and that under the same devise Lulie Westfeldt takes a defeasible fee in the remaining one-half undivided interest in the estate, with limitation over to the children of Overton Westfeldt Price, should the said Lulie Westfeldt die without issue surviving her.

From the judgment entered in accordance with the above rulings, Lulie Westfeldt and the children of Overton Westfeldt Price appeal, assigning errors.

Bourne, Parker & Jones and V. S. Starbuck, all of Asheville, for appellant Lulie Westfeldt.

George H. Wright, of Asheville, for other appellants.

Jones, Williams & Jones, of Asheville, for appellee.

STACY C.J.

The will now submitted for construction was before the court on an issue of devisavit vel non at the fall term, 1924, and is set out in full in 188 N.C. 702, 125 S.E. 531, with a valuable opinion by Associate Justice Clarkson, upholding the validity of the several paper writings as the last will and testament of Jenny Westfeldt, deceased.

The appeal presents four separate and distinct questions. They will be considered seriatim.

First, as to whether the specific bequests of $1,000 and $3,000 to Christine Reynolds and the specific bequests of $1,000 and $3,000 to Christine Price are substitutional or cumulative:

It is generally held that where two bequests of quantity, of different amounts, are given to the same person in the same instrument, or by different instruments, as by a will in the one case and a codicil in the other, they are to be considered as cumulative rather than substitutional, and the beneficiary is entitled to receive both (40 Cyc. 1560), though this rule must give way to the controlling rule of interpretation that the intent of the testator, or testatrix, as the case may be, is to govern, provided it does not conflict with the settled rules of law. In fact, the discovery of the intention of the testator, as gathered from the four corners of the will, is the cardinal principle in the interpretation of testamentary instruments, to which all other rules must bend. Witty v. Witty, 184 N.C. 375, 114 S.E. 482. It is the approved position, so far as examined, that where two bequests, as here, are given simpliciter, that is, as plain gifts without any reason or motive assigned therefor, to the same person, by different testamentary instruments, though forming parts of the same will, the bequests are to be considered as cumulative, especially if the amounts are unequal. 40 Cyc. 1561. In deference to this established rule of construction, and in the absence of any contrary testamentary intent appearing from the will or the circumstances of the case, we are constrained to believe that his honor correctly held, in keeping with the authorities on the subject, that the specific bequests to Christine Reynolds and Christine Price are cumulative, rather than substitutional. Stowe v. Ward, 10 N.C. 604.

Second, as to whether Jenny Fleetwood Westfeldt and Lulie Westfeldt each take a one-half undivided interest in fee in the Rugby Grange property under the first devise:

It is the position of the defendants that the first devise, made at Rugby Grange, was revoked by the second and subsequent devise, executed at Frankfort, Ky. We do not assent to this interpretation. In re Wolfe, 185 N.C. 563, 117 S.E. 804. A later will does not revoke an earlier one, without express words of revocation, unless the two are so inconsistent as to be incapable of standing together. In re Venable, 127 N.C. 344, 37 S.E. 465. Here, the first devise is specific and has reference to a single piece of property, which is only a small part of what the testatrix owned. It may therefore stand as an exception to the general devise contained in the second paper writing, thus giving effect to both provisions. It is the duty of the court to reconcile the various clauses of a will, if this can be done, as the maker is presumed to have intended that all should take effect. Pilley v. Sullivan, 182 N.C. 493, 109 S.E. 359; Dalton v. Scales, 37 N.C. 521; Edens v. Williams, 7 N. C. 27; Underhill on Wills, § 359. And where a general disposition of the whole of the testator's property is preceded by specific devise of only a small part, it is held that the former must be understood as impliedly subject to the latter, and the property conveyed by the special devise will pass thereunder rather than under the universal disposition. Rice v. Satterwhite, 21 N.C. 69; Fraser v. Alexander, 17 N.C. 348; Dalton v. Scales, supra. It follows, therefore, that Jenny Fleetwood Westfeldt and Lulie Westfeldt each take a one-half undivided interest in fee (C. S. § 4162) in the Rugby Grange property under the first devise.

Third, as to whether Jenny Fleetwood Westfeldt takes a one-half undivided interest in fee in the remainder of the estate by virtue of the second devise:

We now come to the first real battleground of debate between the parties, but from the reasoning in all the decisions on the subject, the question would seem to be involved in no serious doubt as to its proper solution. Jenny Fleetwood Westfeldt survived the testatrix. The limitation that her interest under the second devise is "to revert to Lulie Westfeldt in case of Jenny Fleetwood Westfeldt's decease" has reference to the death of Jenny Fleetwood Westfeldt during the lifetime of the testatrix. This not having occurred, the devise to Jenny Fleetwood Westfeldt, under the second clause became absolute upon her survival of the testatrix. Goode v. Hearne, 180 N.C. 475, 105 S.E. 5; Bank v. Murray, 175 N.C. 62, 94 S.E. 665. It is the recognized rule of...