Whitfield v. Douglass

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE
• Citation: Whitfield v. Douglass, 175 N.C. 46, 94 S.E. 667 (N.C. 1917)
• Decision Date: 23 December 1917
• Docket Number: (No. 232.)
• Parties: WHITFIELD et al. v. DOUGLASS et al.

94 S.E. 667

(175 N.C. 46)

WHITFIELD et al.

v.DOUGLASS et al.

(No. 232.)

Supreme Court of North Carolina.

Dec. 23, 1917.

Appeal from Superior Court, Lewis County; Stacy, Judge.

Action by Bettie Whitfield and others against W. B. Douglass and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

On the hearing, it appeared: That, prior to September, 1896, Bettie G. Whitfield died leaving a last will and testament which has been duly admitted to probate, and the portion of said will material and relevant to this controversy is as follows:

"I give and devise to my children, William Cobb Whitfield, Annie W. Outlaw, Sallie E. Whitfield, Bettie Whitfield, James Richard Whitfield, Harriet Lucy Whitfield, all my real estate, to have and to hold to them and their heirs in fee simple forever, and all my personal property to them and their assigns forever upon the conditions as follows: No part of said property is to be disposed of until my youngest child then living shall arrive at the age of 21 years and until after the death of my husband, Nathan B. Whitfield. The dwelling house I now occupy, or such other house as may be hereafter built shall be a home for my husband during his life; that the annual rents, profits and incomes derived from my plantation shall be devoted to the support and education of my children, to the necessary repairs of the houses and plantations, and the surplus, if any, of such rents and profits shall be used in such manner as my executor hereinafter named may deem best, without being required to give any account of the same. When my youngest child then living and after the death of my husband, shall arrive at the age of 21 years, it is my will and desire, that all my real and personal estate be equally divided between my above named children, share and share alike, and should either or any of them die without issue, then their share shall be equally divided between my other children then living, or should either or any of them die leaving issue, then shall such distributive share go to such issue left."

The will then appoints the husband executor, to serve without bond, etc. That thehusband, executor, has died, and all the children mentioned in the disposing clause of the will having become 21 years of age, partition of the real estate, the subject of the devise, was had among the said children, devisees, and heirs at law; the present plaintiffs, Bettie and Hattie Whitfield, being awarded their share of the property. That, in November 1917, these plaintiffs entered into a contract with defendant, making disposition of their said property for valuable consideration and requiring that a good title be conveyed. That defendants, averring their readiness and ability to comply with the terms of the contract, on their part allege that plaintiffs are not entitled to relief, for the reason that they cannot make a good title to the property as they have contracted to do.

His honor, being of opinion that, on the facts presented, the title offered was a good one, gave judgment that the contract be enforced according to its terms, and defendants excepted and appealed.

Rouse & Rouse, of Kinston, for appellees.

Julius Brown, of Greenville, for interveners N. W. Outlaw and Bettie Cobb Outlaw.

HOKE, J. "Subject to the position that the intent and purpose of the testator, as expressed in his will, shall always prevail, except when the same is in violation of law, " it Is a recognized rule with us, when the will is sufficiently ambiguous to permit of construction, the courts should lean to that interpretation which favors "the early vesting of estates, and that the first taker of an estate by will is ordinarily to be considered as the primary object of the testator's bounty." Citizens' Bank v. Murray, 94 S. E. 665, at the present term; Bank v. Johnston, 168 N. C. 304, 84 S. E. 355; Dunn v. Hines, 164 N. C. 113, 80 S. E. 410.

Our recent decisions further hold that, when an estate by will is...