Spain v. Spain , 260 N.C. 482 ( 1963 )

RodmaN, J.

As said by Shakp, J., in Trust Co. v. Bryant, 258 N.C. 482, 128 S.E. 2d 758: “The basic rule of -construction, and the refrain of every opinion; which seeks to comprehend a testamentary plan is that '(t)'he intent of the testator is the polar star that must guide the courts in the interpretation of a will’.” Moose, J., .said in Poindexter v. Trust Co., 258 N.C. 371, 128 S.E. 2d 167: “The intent of the testatrix iis her will and must ibe carried out unless some rule of law forbidis it.”

Testatrix did not “give,” “¡bequeath,” or “devise” 'her property. She “wants” (used .in nine different places) certain designated persons to have designated parts of her estate. Except where she expressly “wants” a beneficiary to have .a life estate in her realty, the will does not particularize ¡the estate the beneficiary acquires.

It is, we -think, apparent from the writing that Mrs. Wilson intended a complete disposition of her properties. Where one undertakes to make a will, the presumption is that toe instrument disposes oif all of testator’s property, not leaving a residue to pass under laws governing intestacy. Poindexter v. Trust Co., supra; Little v. Trust Co., 252 N.C. 229, 113 S.E. 2d 689. “Having undertaken to make a -will -at all, it is not consistent with sound reasoning that the testator would have left his estate -dangling.” Coddington v. Stone, 217 N.C. 714, 9 S.E. 2d 420.

Here toe intent -of -toe testatrix to limit the estate in toe realty given her brother Frank is -apparent. At -hie death she w-an-ts toe place to go to three named -nephews -and a great-nephew. Had toe will stopped there, the named devisees would ihiave taken an estate in fee. G.S. 31-38; Morris v. Morris, 246 N.C. 314, 98 S.E. 2d 298. But the will did not stop with 'the gift to the nephews and great-nephew who take on the termination of the life estate given to testatrix’ brother Frank. She said: “At there death I want the place to go to there 'Children & so on . . .” The language used in making the gift to the nephew© and great-nephew is similar to the language used with respect to the gift to her brother. At their death she wants “the place to go to there children.” Had ©he ©topped with the word “children” the intent to give an undivided fourth to each of the named devisees with a remainder in that fourth to each devisee’s children would be apparent. The children would take the fee. G.S. 31-38. But that interpretation would give no significance to the phrase “& ©o on.” To reject those words would be to make a will for the testatrix and not interpret what she ©aid. An interpretation requires an ascertainment of the meaning of the words used— each presumably ha© some meaning. Maxwell v. Grantham, 254 N.C. 208, 118 S.E. 2d 426; Clark v. Connor, 253 N.C. 515, 117 S.E. 2d 465; Morris v. Morris, supra.

What did testatrix mean by the phrase “& so on”? The phrase is equivalent to “continuing in the same manner.” Jones v. Assurance Society, 147 N.C. 540, 61 S.E. 388, 25 L.R.A. 803. What Mrs. Wilson meant was that each succeeding generation would take the property on the death of the ancestor — an indefinite line of succession by the children upon the death of the parent. She intended that each beneficiary should take an estate for life with remainder to heir© of hi© body.

Layton, C.J., ©aid in Farrell v. Faries, 22 A. 2d 380; “The words 'child and children’ are primarily and presumptively words of purchase. Their technical and legal meaning is the immediate offspring and not an indefinite line of heir© .... In their natural import they are not words of limitation unless it is to comply with the intention of the testator, when they cannot take effect in any other way .... They are properly descriptive of a particular class or generation of issue, and point at individual acquisition, not at heritable succession .... Both in law and in common parlance they have only one meaning, although they may be shown by the context to have been improperly used in the sense of descendants.” (Emphasis added.)

The same thought was expressed in Dodson v. Ball, 60 Pa. St. 492, 100 Am. Dec. 586, where it is ©aid: “The decisions in all the cases ©how the undoubted tendency of the judicial mind in 'this state to follow the true intention of the donor, and whenever he means to limit an estate to the heirs of the life tenant, no matter how his intent is expressed, an estate of inheritance will vest in the tenant for life; but when he intends his bounty to vest in certain pensoms, though they may be the same as -the bears at law, the life estate will not be enlarged . .

Similar statements and applications of the legal principles may be found in Mason v. Ammon, 11 A. 449; Shapley v. Diehl, 53 A. 374; Pifer v. Locke, 55 A. 790; Simpson v. Reed, 54 A. 499; Beall v. Beall, 162 N.E. 152; Gould v. Ledbetter, 150 A. 375; In re Court’s Estate, 91 N.Y.S. 2d 881; In re Tone’s Will, 174 N.Y.S. 391; In re Guthrie’s Appeal, 37 Pa. St. 9. See also 47 Am. Jur. 805 and cases cited in note 19.

An important factor in ascertaining the meaning of the word “children” is, 'as noted in several of the cases, the fact that if the word “children” is not interpreted to mean 'heirs or heirs of the body, the devise miay violate the rule against perpetuities, thereby resulting in at least partial intestacy. Poindexter v. Trust Co., supra.

Having reached the conclusion that Mrs. Wilson uised the word “children” in the sense of “heins of the body” it follows that each nephew land the great-nephew took an estate tail by virtue of the rule in Shelley’s case, which by the statute of 1784 (G.S. 41-1) is converted into an estate in fee simple.

We conclude that Frank H. Spain, brother of testatrix, took an estate for his life in the property known ais the Spain place and, subject to said life estate, Iris three son®, to wit, Robert W. Spain, Franklin H. Spain, and William W. Spain, 'and his grandson, Robert W. Spain, Jr., each took an undivided one-fourth in fee in remainder. The judgment appealed from will be modified to' conform with this opinion, and a® so modified, the judgment is affirmed.

Modified and affirmed.