Clark v. Connor

*520 WiNBORNE, C. J. On Defendants’ Appeal. The pivotal question involved on this appeal as stated by defendants is this: “Does the Will of J. J. Clark bequeath and devise his estate to his wife absolutely and in fee simple, or does it create a trust?” The trial court was of opinion that the will created a trust for the benefit of the widow and children, and so held. In this ruling this Court is constrained to hold that there is error. The language used manifestly vested the widow with an estate in fee to the land devised. The words “to take, hold, have and do with as she shall deem best and proper, for the benefit of herself and our children” are precatory in nature. Indeed they are an admonishment to the widow rather than of creative intent. The focal point relates to the language of Item II as stated in the will above set forth. And in this connection G.S. 31-38 pertinently provides that “When real estate shall be devised to any person the same shall be held and construed to be a devise in fee-simple, unless such devise shall in plain and express words show, or it shall be plainly intended by the will, or some part thereof, that the testator intended, to convey an estate of less dignity.” The purpose of this statute was to change the common law rule that a devise of land without words of perpetuity conveyed a life estate only unless there was a manifest intention to convey a fee. And since the statute a devise will carry the fee unless it appears from the will that the testator intended to convey an estate of less dignity. This rule has been consistently applied in this State since the statute was passed in 1784. See Andrews v. Andrews, ante, 143, where numerous cases are cited. And bearing in mind the admonition laid, down by Higgins, J., in Morris v. Morris, 246 N.C. 314, 98 S.E. 2d 298, that it is extremely rare to find two cases alike, little or no aid can be derived by a court in construing a will from prior decisions in other will cases. It is not sufficient that the same words in substance or even literally have been construed in other cases. It often happens that the same identical words require very different constructions according to context and the peculiar circumstances of each case. The rule is elementary that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In ascertaining this intention the language used,, and the sense in which it is used by the testator, is the primary source of information, as it is the expressed intention of the testator which is sought. Little v. Trust Co., 252 N.C. *521 229, 113 S.E. 2d 689; Bank v. Hannah, 252 N.C. 556, 114 S.E. 2d 273. Isolated clauses or sentences are not to be considered by themselves, but the will is to be considered as a whole, and its different clauses and provisions examined and compared, so as to ascertain the general plan and purpose of the testator, if there be one. Ordinarily nothing is to be added to or taken from the language used,, and every clause and every word must be given effect if possible. Generally, ordinary words are to be given their usual and ordinary meaning, and technical words are presumed to have been used in a technical sense. If words or phrases are used which have a well-defined legal significance, established by a line of judicial decisions, they will be presumed to have been used in that sense, in the absence of evidence of a contrary intent. If, when so considered, the intention of the testator can be discerned, that is the end of the investigation. In the present case the devise in Item II of the will “I bequeath, devise and give all of my property of every kind and character, real, personal and mixed, wheresoever the same may be situate, unto my wife, Susan W. Clark, to take, hold, have and, do with as she shall deem best and proper, for the benefit of herself and our children” is of the class of phrases above mentioned. In many cases where the courts have passed upon language identical or practically identical, it has been held that no trust is created and the widow gets a fee simple estate. The children take no interest or estate in the property given and are only mentioned to express motive for the devise to the wife. Indeed, “the wit of man has not yet discovered a safer repository than the mother for the rights and interests of children,” in the language of Keith, J., in Tyack v. Berkeley, 100 Va., 296, 40 S.E. 904. Numerous cases pertinent to question here have been assembled in 49 A.L.R. 10; 70 A.L.R. 326 and 107 A.L.R. 896. Furthermore it is worthy of note that the will of J. J. Clark appears to have been witnessed by H. G. Connor, Jr., then a distinguished member of the bar in this State. The language of his father, a member of this Court, writing in St. James v. Bagley, 138 N.C. 384, at page 395, 50 S.E. 841, is significant. It reads: “We also note that Mr. Wright, an eminent and learned member of the bar, is a witness to the deed. We may reasonably infer that he either wrote or was consulted in regard to the deed. The fact that no trust is declared is convincing proof in the light of other circumstances that none was intended.” *522 In the light of the statute G.S. 31-38 and decisions of this Court, looking at the will as a whole, it is clear that the testator intended his wife, Susan W. Clark, to take a fee simple estate. Hence the rulings of the trial judge in conflict herewith is error. Having so decided, it is not necessary to consider the other assignments of error brought forward on appeal by the defendants-appellants. Neither is it necessary to consider the assignments of error brought forward by the plaintiff as they were predicated on the lower court’s ruling that J. J. Clark’s will created a trust. The case will be remanded to the Superior Court of Wilson County for the entry of a proper judgment. Error and remanded. Higgins, J., dissents.