Van Winkle v. Catholic Missionary Union

Bbogden, J. There are, at least, two propositions of law settled in this State beyond dispute. These are: First, the fundamental object in construing a will is to discover and effectuate the intention of the testator; and, second, this intention must be arrived at by an examination of the entire will when read in the light of all the surrounding facts and circumstances. Pilley v. Sullivan, 182 N. C., 493; Witty v. Witty, 184 N. C., 375; Gordon v. Ehringhaus, 190 N. C., 147. It appears from the facts found by the trial judge that Bose Mary Byrne survived the testatrix, Mary W. Byrne, and died without ever having been married and without issue. Therefore, items three and four of the will of Mary W. Byrne have no application. In item two of the will it is provided “if she (Bose Mary Byrne) shall leave no issue surviving her, then I give said the remaining principal to the same legatees as hereinafter provided for the residuary of my estate,” etc. We think the words “residuary of my estate” refer to the residuary clause of the will, which is item five thereof, and that under the provisions of item five the defendant takes the property in dispute. It is contended by the plaintiff that item five is not a residuary clause. The legal characteristics of a residuary clause in a will are described as follows, by Walker, J., in Faison v. Middleton, 171 N. C., 170. “ 'Residue,’ meaning that which remains, no particular mode of expression is necessary to constitute a residuary clause. The words 'rest,’ 'residue,’ or 'remainder’ are commonly used in the residuary clause, whose natural position is at the end of the disposing portion of the will; but all that is necessary is an adequate designation of what has not otherwise been disposed of, and the fact that a provision so operating is not called the residuary clause is immaterial.” In discussing the question of a residuary clause in a will the learned Justice says further: “In order to ascertain what is given, or whether any particular thing is well given, by a specific gift, you must look to see whether that particular item is included. The question is whether it is included or not; but once given a residuary gift large enough in its language to comprehend residue, the question is, not what is included, but what is excluded.” Gordon v. Ehringhaus, 190 N. C., 147. *135 Applying these principles of law to the facts presented in the record, it is obvious that item five constitutes the residuary clause of the will, and that, by virtue of reference thereto in item two of the will, the defendant, Catholic Missionary Union, is entitled to the property. Therefore, the judgment of the court was correct. The substituted trustee shall pay the cost out of the fund before distribution is made. Affirmed.