Tate v. . Amos

OlaeKSON, J. The question of law -involved in this case is whether or not Grace Darling Winend Hendrick acquired a fee-simple title to the lot in controversy, under the will of S. M. Farabee, in words as follows: "To Grace Darling Winend Hendrick I give the lot and house on North Main Street, No. 527, that she now occupies, or to her children, and all my wearing clothes and bed clothes if she wishes them.” We think so. In Ellington v. Trust Co., 196 N. C., p. 755, the law is thus stated: “The guiding star in the interpretation of wills, to which all rules must bend, unless contrary to some rule of law or public policy, is the intent of the testator, and this is to be ascertained from the four corners of the will, considering for the purpose the will and any codicil or codicils as constituting but one instrument. 28 R. C. L., 211, et seq.” This principle is well settled in this jurisdiction. Appellants, defendants, contend (first) that in the construction of the will “or” means “and” and the lot in controversy would vest in Grace Darling Winend Hendrick and Charley Thomas Hendrick, Jr., as tenants in common. This Court has uniformly held that a devise to “A.” and her children, “A.” having children, vests the estate to them as tenants in common. Hunt v. Satterwhite, 85 N. C., 73; Silliman v. Whitaker, 119 N. C., 89; Lewis v. Stancil, 154 N. C., 326; Cullens v. Cullens, 161 N. C., 344; Snowden v. Snowden, 187 N. C., 539; Cunningham v. Worthington, 196 N. C., 778. The substitution of word “or” used as “and” is fully discussed in Wood v. Wood, 132 S. C., 120, 128 S. E., 837. See Neal v. Nelson, 117 N. C., 393; Silliman v. Whitaker, supra; Christopher v. Wilson, 188 N. C., 757; Robertson v. Robertson, 190 N. C., 558. In Harrison v. Bowe, 56 N. C., at p. 481, this observation is made: “But, say the counsel, the word ‘or’ must be construed ‘and.’ Such a change of words is admissible, certainly, when the intent of the testator will be defeated *162 without it; but it is never admissible unless it is necessary to carry out the manifest design of the will.” Appellants contend (second) that Grace Darling Winend Hendrick and Charley Thomas Hendrick, Jr., are both living and the devise is void for uncertainty. In Gordon v. Ehringhaus, 190 N. C., at p. 150, it is said: “When a person, who is capable of doing so, undertakes to make a will, the law presumes that he did not intend to die intestate as to any part of his property.” Faison v. Middleton, 171 N. C., 170; McCullen v. Daughtry, 190 N. C., 215. We do not think that either of the contentions of appellants, defendants, can be sustained. The testatrix gave Charley Thomas Hendrick, Jr., a brick storehouse. He was the son of Grace Darling Winend Hendrick. After providing for the son, she devises the lot in controversy to Mrs. Hendrick or to her children. We think the principle applicable here is well stated in 1 Jarman on Wills, p. 612, as follows: “The strong tendency of the modern cases certainly is to consider the word ‘or’ as introducing a substituted gift in the event of the first legatee dying in the testator’s lifetime; in other words, as inserted, in prospect of, and with a view to guard against, the failure of the gift by lapse.” A similar case to the present which sustains plaintiffs’ contention is Bender v. Bender, 226 Pa. St. 607, 75 Atl., 859, 134 A. S. R., 1088. We think the intention of Mrs. S. M. Farabee, the testatrix, gathered from the entire will, was to devise to Grace Darling Winend Hendrick a fee-simple title to the lot in, controversy if she survived the testatrix. If Grace Darling Winend Hendrick died before the testatrix, then the lot in controversy would vest in her child or children in fee simple. She survived the testatrix. This being our interpretation; plaintiffs, who claim under Mrs. Hendrick, acquired a fee-simple title to the lot in controversy. The judgment of the court below is Affirmed.