Baker v. . Edge

Allen, J. The question presented is the effect of the codicil on the will. Does it strike the name of John Baker from the 12th item of the will, and does it destroy the ulterior limitation to the next of kin, in the event of the death of both John and Jesse Baker leaving no issue? The researches of counsel and of the Court furnish no precedent to guide us, and we are left to ascertain the intent of the testator under general rules of construction established by the wisdom and experience of our predecessors, but not always leaving the mind free from doubt, since in the last analysis, construction is an effort to find the mind of the testator as expressed in the will, and the standard is the mind of the Court, and generally they are unlike, differently trained, and reach conclusions by a course of reasoning having no similarity. The codicil before us does not purport to revoke the will. It only revokes and annuls the devise or bequest of an undivided one-half of the Ruffin tract to his grandson, John Baker, leaving John in the 12th item *103 of tbe will as one-half owner of tbe negro Ben and as tbe sole owner of two shares of Wilmington and E. E. E. stock. It is well settled that there may be a partial revocation of a will (Barfield v. Carr, 169 N. C., 575), and that a codicil “imparts not a revocation, but an addition, or explanation, or alteration of a prior will in reference to some particular, and assumes that in all other particulars the will is to be in full force and effect.” Boyd v. Latham, 44 N. C., 367. The codicil and the will are “the final disposition reading by the light of both instruments together as a corrected whole” (In re Venable's will, 127 N. C., 347, quoting from Shouler), and the will and codicil must be considered together as a whole. Allbright v. Allbright, 172 N. C., 353. The Courts are also averse to the revocation of a will by implication, and, as said in Hallyburton v. Carson, 86 N. C., 294, “ ‘If the codicil is expressed to allow the will in one particular, the presumption is,’ says a recent author, That it confirms and republishes the rest of the will.’ O’Hara on Wills; p. 6. 'It is an established rule not to disturb the dispositions of the will further than is absolutely necessary to give effect to the codicil.’ 1 Jar. Wills, 343, note. “Thus a change of devisees to whom land is given, subject to a rent charge, will not revoke the rent charge, but the substituted devisee will take the land cum onere. Becket v. Hardin, 4 M. & S., 1. The object in all cases is to arrive at the intent of the testator and give effect to both instruments when they can operate in harmony.” Applying these principles, and keeping in mind that the codicil does not revoke item 12, nor all the bequests and devises to John in that item, that it only purports to revoke the devise to John of an undivided half of the Euffin tract, and that John’s name must still remain in the item in order that he may retain his interest in the negro and the railroad stock, the limitation over, on the death of John and Jesse leaving no issue, must stand; and as this event has taken place, the next of kin have an interest in the land in controversy. It does not follow, however, that this interest extends to the whole of the Euffin tract. The testator gives to Jesse Baker in item 12 only an undivided half of the Euffin tract, and he has manifested no purpose in the codicil to increase this interest, when it would have been easy to do so if this had been his intent. John and Jesse were grandsons of the testator, equally the objects of his bounty, and the purpose is clear to treat them alike. He gave an undivided half of the Euffin tract to each, and in the codicil he gave John the Brown tract in lieu of an undivided half of the Euffin tract. Is is reasonable, under these conditions, to conclude that the testator, controlled by the purpose to treat both grand *104 sons impartially and to give each an equal share in his estate, could have intended to give Jesse the whole of the Euffin tract, which was, in his opinion, worth twice as much as the Brown tract given to John? We think not. This undivided interest does not go to the next of kin. It is property not specifically disposed of under the will, and passes under the residuary clause (Faison v. Middleton, 171 N. C., 173, and cases cited), freed of the limitations in item 12, and as to those claiming under the residuary •clause, the adverse possession of the defendants and those whom they •claim under color since 1865 is a complete bar as to this one-half interest. The principle that the revocation of the particular estate by a codicil revokes the remainder or limitation does not apply unless the codicil discloses a testamentary intent to revoke the limitation, and generally the limitation will be accelerated by the revocation of the particular estate rather than defeated. In re Whiteforn (2 Ch., 121), 5 Anno. Cas., 789, and note. We are, therefore, of opinion' the next of kin take an undivided one-half interest in the Euffin tract under the limitation in item 12 of the will, and as their rights did not accrue until the death of John in 1913, the defendants have not acquired title as to that part by adverse possession, and that the defendants are the owners of the other one-half of said Euffin tract. The defendants will pay the costs of the appeal. Eeversed.