Snow v. Boylston , 185 N.C. 321 ( 1923 )

Hoke, J.

The pertinent facts and conclusions of law thereon are embodied in the judgment as follows:

The two above entitled causes coming on to be tried at the second October, 1922, Term of the Superior Court of Wake County, before his Honor, C. C. Lyon, judge presiding, the same having been by consent of the parties thereto, consolidated and tried together; and a jury trial having been waived by counsel for the parties and the signing of the judgment having been, by consent of counsel, continued to the second November Term, 1922, of said court; and the said parties to said causes having, in open court, agreed and consented that the paper-writing on 7 August, 1920, by Mrs. Elizabeth McC. Snow and found among her valuable papers and effects, copy of which is as follows, viz.:

“August 7,- 1920. To my children: I am writing this to beg each one of you to try and carry out what you will know to be my wishes in case I shall be called suddenly before a formal will can be made. After all notes are paid there will remain $100,000 (one hundred thousand) to be divided among the three children, Mary S. Baskerville, William B. Snow and Adelaide S. Boylston. The following legacies are to be deducted from total before the division into three is made $1,000 (one thousand dollars) to each of my grandchildren, Charles Baskerville, Jr., Elizabeth MeC. Baskerville, Adelaide S. Boylston, Jr., William B. Snow, Jr., and Jno. Kendall Snow; $100.00 (one hundred) to Delia Hartsfield; $25.00 (twenty-five dollars) to Berline Flagg.

“The Boylan Avenue home place I now hold at $40,000 — if not sold before this comes into your hands, it is to be a home for Adelaide and her daughter till such time as a smaller place can be provided and the old home place sold for division.

“To Charles Baskerville, Jr., an old family ladle and spoons; to Elizabeth B., the silver sugar bowl and cream pitcher made from my baby cup given me by my grand-father Boylan; to Adelaide S. Boylston, Jr., portrait of her great-great aunt, Annie Lawrence.

“To William B. Snow, Jr., the old silver can of his great-great grandfather, William Boylan; to John K. Snow, my gold double-ease watch”; should be considered and become the last will and testament of the said Elizabeth McC. Snow, deceased, and declared binding in every particular upon the parties to said action, to wit: William B. Snow, Adelaide S. Boylston and Mary S. Baskerville, the son and daughters respectively of the said Mrs. Elizabeth McC. Snow, and that the estate of the said testatrix should be settled and divided according to the provisions thereof, although the said paper-writing was not signed by said testatrix, and the said parties having thereupon further agreed and consented that a jury trial be waived, and that the said paper-writing should be construed by his Honor, C. C. Lyon, judge presiding, and the contentions of the parties having been fully stated and argued by counsel, and the court having fully heard and considered same:

It is thereupon ordered, adjudged, and decreed by the court that the said paper-writing hereinbefore set out be and the same is hereby declared effective as the last will and testament of Elizabeth McC. Snow, deceased, and binding upon the parties thereto, and that said estate shall be divided and distributed according to its terms and provisions, and that the true intent and meaning of the same is that after the payment of the pecuniary legacies of one thousand dollars to each of the grandchildren of said Mrs. Elizabeth MeC. Snow, to wit: Charles Baskerville, Jr., Elizabeth McC. Baskerville, Adelaide S. Boyl-ston, Jr., William B. Snow, Jr., and John Kendall Snow, and the payment of one hundred dollars to Delia Hartsfield, and twenty-five dollars to Berline Elagg, the residue of said estate, both realty and personal property, after tbe payment of all debts of tbe estate and cost of administration, is to be equally divided among tbe three children of tbe said Mrs. Elizabeth McO. Snow, to wit: Mary S. Baskerville, William B. Snow and Adelaide S. Boylston, one-third part each, and that tbe Boylan Avenue home place was to be occupied as a home by tbe said Adelaide S. Boylston and her daughter until such time as tbe debts due tbe estate could be collected and tbe notes and other indebtedness of tbe estate could be paid and tbe said Adelaide S. Boylston thereby enabled to provide for herself a smaller place from and out of her one-third part of tbe real estate and personal property, and that at such time, tbe Boylan Avenue home place was to be sold for an equal division among tbe said three children, in tbe proportion of one-third each; and it being admitted by tbe administrators of tbe said estate, parties thereto, that all notes and debts of tbe said estate have been long since paid, and more than twelve months, to wit: Fifteen months having elapsed since tbe qualification of tbe said administrators and since tbe publication of notice to creditors, and there being no reason for tbe further administration of said estate, and tbe devisees and legatees under tbe said last will and testament being entitled by law to have a division of tbe real estate and a payment of legacies and distribution of tbe personal property of said estate in accordance with tbe provisions of said last will and testament, as hereinbefore declared and defined, it is further ordered, adjudged, and decreed that tbe said William B. Snow and Adelaide S. Boylston, administrators of tbe estate of Mrs. Elizabeth McO. Snow, proceed at once to convert into money a sufficiency of tbe stocks belonging to tbe personal estate of tbe said Mrs. Elizabeth McO. Snow to pay tbe said pecuniary legacies in full to tbe legatees of age, and those not of age to their guardians, and deliver tbe specific bequeaths of personal property mentioned in tbe said will, and divide and distribute and deliver to Mary S. Baskerville, William B. Snow, and Adelaide S. Boylston-a one-third part each of tbe residue of tbe personal property of said estate, mentioned and described in tbe petition and complaint herein, tbe same to be appraised and valued by a competent appraiser or appraisers and divided according to value, and file with tbe clerk of tbe Superior Court of Wake County a final account "of tbe said administration.

And it is further ordered, adjudged and decreed that the petitioners and plaintiff, William B. Snow, is the owner and entitled to the possession of an undivided one-third interest and estate in fee simple in the real estate mentioned and described in the petition and complaint herein, and that the defendant, Adelaide S. Boylston, is the owner and entitled to the possession of an undivided one-third interest and estate in fee simple in the real estate mentioned and described in the complaint herein, and that the defendant, Mary S. Baskerville, is the owner and entitled to the possession of an undivided one-tbird interest and estate in fee simple in the real estate mentioned and described in tbé petition and complaint herein, and that all of the said real estate except the Boylan Avenue home place shall be divided equally between the said William B. Snow,-Mary S. Baskerville and Adelaide S. Boylston; and that Gavin Dortch and D. E. Fort, Jr., and Daniel Allen are hereby appointed commissioners of this court to make a division of the real estate among the three several devisees and heirs at law above mentioned, the said division to be made into equal shares in point of value as near as possible, and to charge the more valuable dividends with such sums of money as they may think necessary to be paid to the dividends of'inferior value, in order to make equality of partition, except that the Boylan Avenue home place consisting of the following real estate, to wit:

Three (3) lots situated at the southwest corner of the intersection of Morgan Street and Boylan Avenue, and facing upon Boylan Avenue, upon which is situated the dwelling bouse and residence of the said Elizabeth McO. Snow, and which said three lots have a frontage of 182.4 feet on Boylan Avenue, bounded on the north by Morgan Street, and on the south by the land of Lynn Wilder.

Three (3) vacant lots adjoining tbe above mentioned three lots on tbe west, and fronting upon Morgan Street, as shown upon a map or plat of same surveyed and platted by John B. Bray in March, 1917, filed with tbe petition and complaint herein, marked Exhibit “A,” shall be forthwith sold by the administrators of said estate as provided in the said last will and testament, and to that end the said administrators are hereby directed to have the dwelling house now situated upon said home place, the same being the old Snow residence, removed from its present location to Lot No. 6, on said map or plat by some experienced and competent house-mover, and shall pay the cost and expense of removing, replacing and restoring same out of the assets of said estate, and thereupon shall offer for sale at public auction on the premises to the highest bidder, for cash, remaining vacant lots and said Lot No. 6 with the house thereon, after having duly advertised said sale for 30 days in some daily newspaper published in the city of Raleigh, and convey the lots so sold to the purchasers thereof by good and sufficient deeds, and shall divide the net proceeds of said sale after payment of costs and expenses of the same, and of the removal of the house aforesaid, among the said Mary S. Baskerville, William B. Snow, and Adelaide S. Boylston, one-third each; that in the advertisement and sale of the home place the map or plat of same made by John B. Bray, and hereinbefore mentioned and attached to the petition and complaint herein, shall be used and followed with such change as to alleyways as may be deemed wise and advantageous, and Lot No. 4 shall be included in the areas of lots Nos. 1, 2, and 3 so as to give sufficient depth to those three lots to make it possible to conform any buildings to be hereafter erected thereon to the house lines of adjoining residence, and make said lots of greater value residential property; and it appearing to the court that all debts due the estate of Mrs. Elizabeth McC. Snow has been collected, and all notes and other indebtedness of the said estate has been paid or provided for by ample cash in the hands of the said administrators on 1 August, 1922, and that at that time the said Adelaide S. Boylston could have provided for herself a smaller dwelling-house than the Snow home place from and out of her one-third part of the real estate and personal property, either by occupying One of the four dwelling houses belonging to said estate situated on West Morgan Street, adjoining the Snow home place, or by purchasing or building such smaller dwelling house out of and by means of her one-third share of said estate; it is further ordered and adjudged, that Adelaide S. Boylston shall pay to the estate of Mrs. Elizabeth McC. Snow the reasonable monthly rental value of said Snow home place for each and every month of her occupancy thereof from and after 1 January, 1923, and it is further ordered that the cost of this action be paid by the administrators out of the estate.

For the purpose of carrying out the foregoing provisions of- this judgment as to the sale of the real estate, William B. Snow and Adelaide S. Boylston, administrators of the estate of Mrs. Elizabeth McC. Snow, are appointed commissioners with all necessary powers to carry out said provisions and execute all deeds and other papers necessary thereto. C. C. LvoN,

Judge Presiding.

It is chiefly urged for error that the court below failed to rule that the “smaller place” to be provided for Mrs. Adelaide S. Boylston, the appellant, should be paid for out of the estate before settlement and distribution among the legatees and heirs at law of Mrs. Snow the testatrix, but in our opinion the objection cannot be sustained. It is the accepted position in the construction of wills that unless in violation of law the intent of the testator as expressed in the will shall be given effect and in ascertaining this intent the will shall be considered as a whole, giving to each and every part significance and harmonizing apparent inconsistencies where this can be done by a reasonable interpretation. Pilley v. Sullivan, 182 N. C., 493; Goode v. Hearne, 180 N. C., 475; Hinson v. Hinson, 176 N. C., 613; Freeman v. Freeman, 141 N. C., 97. And the decisions on the subject further hold that in case of conflict the manifest and leading purpose of the testator shall be allowed to prevail. Tucker v. Moye, 115 N. C., 72; Holman v. Price, 84 N. C., 86; Macon v. Macon, 75 N. C., 377; Lassiter v. Wood, 63 N. C., 360. In the Tucker case, supra, Chief Justice Smith delivering tbe opinion said: “A leading principle in tbe interpretation of wills is to recognize tbe general pervading purpose of the testator, and to subordinate thereto any inconsistent special provisions found in it.” And in Lassiter v. Wood construing tbe will there presented, it was said: “It is apparent that tbe leading purpose of tbe testator was to make all bis children equal. Tbe purpose of tbe testator as gathered from tbe will, is always to be carried out by tbe Court, and minor considerations when they come in the way must yield. Especially is this true, when tbe purpose is in consonance with justice and natural affection.”

In tbe will before us, as established by tbe findings of tbe court, tbe clauses more directly pertinent to tbe question presented in the exceptions, are as follows:

“After all notes are paid there will remain $100,000 (one hundred thousand) to be divided among tbe three children, Mary S. Baskerville, William B. Snow and Adelaide S. Boylston. The following legacies are to be deducted from total before tbe division into three is made $1,000 (one thousand dollars) to each of my grandchildren, Charles Baskerville, Jr.; Elizabeth McC. Baskerville, Adelaide S. Boylston, Jr., William B. Snow, Jr., and John Kendall Snow; $100 (one hundred) to Delia Hartsfield; $25.00 (twenty-five dollars) to Berline Elagg. Tbe Boylan Avenue home place I now bold at $40,000— if not sold before this comes into your bands, it is to be a home for Adelaide and her daughter till such time as a smaller place can be provided and tbe old home place sold for division.” Then follows certain minor specific legacies to tbe grandchildren of tbe testatrix in no way affecting tbe interpretation. Considering these provisions as a whole, it is clear that after payment of tbe pecuniary legacies, tbe manifest intent of tbe testatrix is that there should be an equal division of tbe property among her three children, and to bold that tbe estate should be first charged with tbe cost of a home for appellant would not only be in violation of tbe pervading purpose of tbe will, but would also require tbe addition of words that do not now appear therein. Under tbe authorities cited therefore, and tbe principle they approve, and illustrate, bis Honor has correctly ruled that tbe cost of tbe home for appellant is not a proper charge against tbe estate. It is further contended for appellant that bis Honor erred in bolding that she is to be charged with tbe rents of tbe old home place from 1 January, 1923. Tbe position being, as we understand it, that by correct construction of tbe will, appellant is entitled to occupy tbe old home place free of rent until another is provided and in any event for not less than two years from tbe time of tbe qualification of tbe administrators in July, 1921. We are of opinion, however, that in tbe clause applicable it was tbe purpose and intent of the testatrix that her daughter should have a right to occupy the old home free of rent for a reasonable time after the death of said testatrix, having regard to the circumstances presented, the condition of the estate and the time required for its proper settlement, thus affording the daughter a home until from her share of the estate she should be in a position to procure a smaller home for herself. It is not the intent or meaning of our statutes on the subject, C. S., 150, that executors or administrators are allowed absolutely two years in which to settle an estate, the provision is that unless for good reason further time is allowed, these officers shall account and settle immediately after the expiration of two years, and both by the decisions and express statutory provisions on the subject if the estate is so far advanced as to justify it administrators and executors may be called on to account and pay over within the two years period. Caviness v. Fidelity Co., 140 N. C., 58; Allen v. Royster, 101 N. C., 278; Godwin v. Watford, 101 N. C., 168; Clements v. Rogers, 91 N. C., 63; C. S., 156. It appearing from the record and the findings of facts that the debts of the estate have been all paid except the Federal and State inheritance taxes and $20.00 fees due the clerk, that ample funds are in hands to meet these obligations and that the said estate is now ready for distribution — that appellant has been allowed to occupy and control the old home place free of rent for 18 months from the death of her mother and the qualification of her executors, we think the ruling of his Honor in accord with the law and right of the case and that the objection must be disallowed.

On careful perusal of the entire record we are of opinion that the decree of the Superior Court has been entered in accordance with the law applicable and that the rights and interest of all the parties have been carefully protected and provided for, and the same is

Affirmed.