Bell v. . Thurston

WiNBORNE, J. The determinative questions are: (1) Does the clause “Everything I one at my death my wife is to take hole of my estate” in the Fourth Item of the will of Willie J. E. Whitley constitute a residu *234 ary clause wbicb would operate to pass laud not specifically devised? (2) Is Mollie Whitley Thurston, widow of Willie J. R. Whitley, entitled to dower in any undevised realty of which her husband died.seized? Each question is answered “No.” (1) “The rule is to construe a will so as to give effect to every part and clause thereof, and to harmonize the several clauses, provided the effect is not inconsistent with the general intent and purpose of the testator, as gathered from the entire will.” Stacy, C. J., in Richardson v. Cheek, 212 N. C., 510, 193 S. E., 705; Herring v. Williams, 153 N. C., 231, 69 S. E., 140; Goode v. Hearne, 180 N. C., 475, 105 S. E., 5; Reid v. Neal, 182 N. C., 192, 108 S. E., 769; Haywood v. Rigsbee, 207 N. C., 684, 178 S. E., 102; Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356; Barco v. Owens, 212 N. C., 30, 192 S. E., 862; Hampton v. West, 212 N. C., 315, 193 S. E., 290. There appears no such uncertainty in the meaning of the language used as to permit us to go beyond “the four corners” of the will for aid in arriving at the intention of the testator. Nor does the fact that it appears that some of the words are misspelled and others not properly capitalized, some of the sentences are grammatically incorrect, there is improper punctuation, and the will was not written by one learned in the law, take the case out of the rule that we would ascertain the intention by reference to the language used. Freeman v. Freeman, 141 N. C., 97, 53 S. E., 620. “When it becomes necessary to do so in order to effectuate the testator’s intention as ascertained from the context of the will, the court may disregard clerical mistakes in writing, improper use of capital letters, paragraphing, abbreviation of words, punctuation, misspelling, and grammatical inaccuracies, especially where the will is written by an unlearned or illiterate person . . .” 69 C. J., sec. 1143; Tayloe v. Johnson, 63 N. C., 381; Carroll v. Mfg. Co., 180 N. C., 366, 104 S. E., 895. In Taylor v. Taylor, 174 N. C., 537, 94 S. E., 7, Allen, J., said: “If words are used in one part of the will in a certain sense, the same meaning is to be given to them when repeated in other parts of the will, unless a contrary intent appears.” Bearing these principles in mind, let us see the provisions of the will: Manifestly, the writer of the will was unlearned. It is clear that the word “one” is the misspelling of the word “own.” Disregarding punctuation, the clause “Everything I own at my death,” as counsel for appellee aptly state, “appears as the culminating expression of the testator in a series of expressions regarding personal property.” These expressions are significant of the testator’s intention to give to his wife all personal property which he owned at his death. It is noted that the word “hole” in “take hole” is previously used and misspelled in the phrase “with all house hole and ketchen furniture *235 . . Giving to it tbe same meaning, it is patent that tbe testator intended tbe clause to read “My wife is to take hold of my estate.” For there immediately follows tbe sentence appointing bis wife as executrix. As executrix sbe could take bold of tbe estate. It is contended, however, that tbe clause should read, “My wife is to take whole of my estate.” In this connection it is appropriate to note that tbe testator used tbe verb “I give” in making all specific devises and bequests. We find these expressions: “I give and devise to my wife;” “I give to my wife;” “All of this I give.” Having used tbe words “I give” so often, it is not reasonable to conclude that tbe testator would have changed to “take whole” if be intended that sbe should take anything other than that which be bad given to her thereinbefore. If tbe clause should be construed to read “My wife is to‘ take tbe whole of my estate” an inconsistency is created. In Item Three tbe testator gives to bis wife only a life estate in tbe home tract, with remainder to Rosa and Eula. If tbe wife is to take tbe whole of bis estate, repug-nancy exists and then tbe estate given to Rosa and Eula would be wiped out. In Williams v. Best, 195 N. C., 324, 142 S. E., 2, tbe Court said: “If possible, apparent repugnancies must be reconciled, for, as suggested in Dalton v. Scales, 37 N. C., 521, it is not to be admitted, unless tbe conclusion is irresistible, that tbe testator bad two inconsistent intents.” Richardson v. Cheek, supra. 2. Unless tbe widow dissents from tbe will of her husband in tbe manner and within tbe period allowed by statute, C. S., 4096, et seq., and thereby elects to take according to her legal rights, testamentary provision for her in real property excludes her from dower, nothing else appearing. Brown v. Brown, 27 N. C., 136. Tbe judgment below is Affirmed. EaeNHIll, J., took no part in tbe consideration or decision of this case.