Wachovia Bank & Trust Co. v. Lawrence , 19 N.C. App. 487 ( 1973 )

PARKER, Judge.

In their brief appellants contend:

“The testator’s overall and specific intent as to what is meant by' the phrase ‘all remaining funds’ cannot be definitely nor reasonably ascertained from the terms of the will and is susceptible of several interpretations. Therefore, this phrase must be construed in its limited and technical sense and be restricted to include only money, deposits, notes, bonds and other such intangible personal property.”

We do not agree.

The cardinal principle to be followed in construing every will is to ascertain and give effect to the true intent of the testator, for indeed the intent of the testator is his will. Such intent is to be ascertained, if possible, from the language employed by the testator viewed against the background of his own particular circumstances known to him at the time the will was made, and is to be gathered from examination of the instrument as a whole. Thus, each will presents its own unique problem of construction, and the same word, when employed by one testator to express one intended meaning, may have quite a different meaning when employed by another testator under dissimilar circumstances. ,

Considering the problem presented by the present case in the light of the foregoing well established principles, we agree with the trial judge’s conclusion that.the words employed by the testator, “all remaining funds after my estate is settled and all bills paid,” were intended by him as a general residuary disposition of his entire estate, whatever its nature, including all of his real as well as all of his personal property not otherwise disposed of by other clauses of the will and not needed to pay his debts. It is apparent that this testator clearly understood the nature of his assets and that these included his housé and lot. It is equally apparent that, with the exception of certain named-individuals among his friends and kinfolk, he was primarily concerned that his property should go to benefit certain religious and charitable causes which were for the most part identified with his church. As the record before us makes clear, he had a large number of other kin in addition to those whom he expressly remembered in his will, and as to these it is simply not reasonable to assume that he intended that they should become owners by intestacy laws of fractional undivided interests in his house and lot. Indeed, the law and the particular facts of this case raise quite the opposite presumption. 7 Strong, N. C. Index 2d, Wills, § 30. What was said by Rodman, J., speaking for our Supreme Court in In re Will of Wilson, 260 N.C. 482, 138 S.E. 2d 189, has particular pertinence here:

“Where one undertakes to make a will, the presumption is that the instrument disposes of all of testator’s property, not leaving a residue to pass under laws governing intestacy. Poindexter v. Trust Co., supra [258 N.C. 371, 128 S.E. 2d 167]; 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.”

• The cases cited and relied on by appellants, Marrow v. Marrow, 45 N.C. 148, and Williams v. Best, 195 N.C. 324, 142 S.E. 2, are distinguishable and are not here controlling. While, as noted above, each case involving interpretation of a will presents its own unique problems of construction and is therefore seldom directly controlled by decisions in other cases, our decision here does find some support in opinions from other courts which on occasion have construed the word “funds” broadly to include real estate or the general residuary estate of the testator, where the contents of the will and the surrounding circumstances indicated that such was his intention. See: Annotation, 67 A.L.R. 2d 1444.

The judgment appealed from is

Affirmed.

Chief Judge Brock and Judge Hedrick concur.