Williams v. Rand
| Decision Date | 15 December 1943 |
| Docket Number | No. 458.,458. |
| Citation | 28 S.E.2d 247,223 N.C. 734 |
| Parties | WILLIAMS. v. RAND et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; J. J. Burney, Judge.
Action by W. R. Williams, administrator with the will annexed of Octavia Rand, against Parker B. Rand and others pursuant to the provisions of the Uniform Declaratory Judgment Act, Code 1939, § 628(a) et seq., for construction of a will. From a judgment construing the will, plaintiff appeals.
Affirmed.
This is an action brought pursuant to the provisions of the Uniform Declaratory Judgment Act, Chapter 102, Public Laws 1931, N. C. Code of 1939 (Michie), Section 628(a) et seq., for the construction of the holograph will of Miss Octavia Rand.
The parties waived a jury trial and agreed that his honor should hear the evidence, find the facts, and render a declaratory judgment thereon.
The plaintiff appealed from the judgment entered below, and assigned error.
D. B. Teague, of Sanford, for plaintiff.
No counsel for defendants.
The question presented on this record is the proper construction of the first sentence of Miss Rand's holograph will, which reads as follows: "To my beloved brother, W. K. Rand, Durham, N. G, I bequeath my interest in 'Apt. House', 125 Bloodworth St., Raleigh, N. C.--also 1/2 stock in Carolina Power & Light Co. after burial expenses--and putting plot in Oakwood Cemetery in perpetual care, the remainder, if there should be any, to be equally divided among the other brothers and sister (Mrs. Eugene Anderson)." Prior to the death of the testatrix she executed a deed to her brother, W. K. Rand, for her interest in the apartment house referred to above.
His honor held that the proper interpretation of the above sentence was "that the said testatrix, Octavia Rand, bequeathed one-half of her stock in Carolina Power & Light Company by her said last will and testament to her brother, W. K. Rand, and the other half of her said stock in Carolina Power & Light Company to her brothers, Parker B. Rand and Thomas R. Rand, and her sister Mrs. Eugene Anderson, subject to payment of burial expenses and putting plot in Oakwood Cemetery in perpetual care", and entered judgment accordingly.
The plaintiff contends his honor's interpretation is clearly erroneous and was not an interpretation of the language used in respect to the stock in the Carolina Power & Light Company, but was based upon a transposition of clauses in the will so as to completely change its meaning and rewrite the will.
The plaintiff suggests two constructions of the sentence under consideration, neither of which was adopted by the court below: (1) That Miss Rand, by her will, intended to give to her brother, W. K. Rand, one-half of her stock in Carolina Power & Light Company, after the payment of her burial expenses and putting plot in Oakwood Cemetery in perpetual care had been provided for therefrom; the remainder, or one-half of her stock in Caro lina Power & Light Company, to be equally divided among the other brothers and sister, Mrs. Eugene Anderson. (2) That Miss Rand gave to her brother, W. K. Rand, one-half of her stock in Carolina Power & Light Company, as a trustee, the proceeds thereof to be used by him to pay the burial expenses of the testatrix and in putting plot in Oakwood Cemetery in perpetual care, and the remainder of such half of her stock, if there should be any, to be equally divided among the other brothers and sister, Mrs. Anderson. That as to the other one-half of the stock owned by the testatrix in the Carolina Power & Light Company, she died intestate.
"The cardinal principle in the interpretation of wills is to discover the intent of the testator, looking at the instrument from its four corners, and to give effect to such intent, unless contrary to some rule of law or at variance with public policy." Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356, 358; Williams v. Cox, 218 N.C. 177, 10 S.E.2d 662; Smith v. Meats 218 N.C. 193, 10 S.E.2d 659; Culbreth v. Caison, 220 N.C. 717, 18 S.E.2d 136; 28 R.C.L. 211.
In order to adopt the first suggested construction of this will, it would be necessary to strike out or completely ignore the effect of the clause "if there should be any", since this clearly modifies and relates to the words "the remainder". If the other brothers and sister, Mrs. Eugene Anderson, are to receive whatever property is referred to as "the remainder", then such property is subject to deductions for burial expenses and putting plot in Oakwood Cemetery in perpetual care. We think the language used by the testatrix expresses the intention to have "the remainder", first subjected to the charges referred to therein, and the residue of the remainder, if there should be any, to go to these legatees. To hold otherwise would give these legatees a larger bequest than was contemplated by the testatrix.
The second suggested construction is equally untenable. While it appears from the record herein that the testatrix disposed of only a part of her property by the will under consideration, and died intestate as to the other part, in construing a will the presumption against intestacy justifies an interpretation of the present instrument to the effect that the testatrix intended to bequeath all her stock in Carolina Power & Light Company, and we so hold. Codding-ton v. Stone, 217 N.C. 714, 9 S.E.2d 420; West v. Murphy, 197 N.C. 488, 149 S.E. 731; Smith v. Creech, 186 N.C. 187', 119 S. E. 3; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Austin v. Austin, 160 N.C. 367, 76 S.E. 272; Powell v. Woodcock, 149 N. C. 235, 62 S.E. 1071. Furthermore, we do not think the language used by the testatrix in her will supports an interpretation to the effect that she intended to create a trust and that her brother, W. K. Rand, as trustee, was to receive and dispose of the property, pay the burial expenses, put the plot in Oakwood Cemetery in perpetual care, and to equally divide the remainder, if there should be any, among the other brothers and sister, Mrs. Eugene Anderson.
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