Citizens Bank v. Murray

HoKE, J, after stating the case: From the facts stated in the record and on the argument, it appears that all matters of controversy growing out of the will of the testator have been satisfactorily adjusted except the one question whether, under the codicil and the facts and circumstances properly relevant to its construction, the estate of W. H. Murray became absolute on his marriage and the birth of issue of the marriage, which issue is still living. Subject to the position that the intent and purpose of the testator, as expressed in his will, shall always prevail except when the same is in violation of law, it is a recognized rule of interpretation with us that when an estate by will is limited over on a contingency and no time is fixed for the contingency to occur, the time of the testator’s death will be adopted, unless it appears from the terms of the will that some intervening time is indicated between such death and that of the first taker. Bank v. Johnson, 168 N. C., 304; Dunn v. Hines, 164 N. C., 113; Galloway v. Carter, 100 N. C., 111; Price v. Johnston, 90 N. C., 593; Vass v. Freeman, 56 N. C., 221; Cox v. Hall, 17 N. C., 121. Our decisions further hold that in case of ambiguity in the terms of the will, permitting construction, the courts will favor the interpretation which makes for the early vesting of estates and that the first taker is ordinarily to be considered as the primary object of the testator’s bounty, a position more insistent when such first taker is his child and heir at law. These rules are very convincingly stated by Associate Justice *66 Walker in tbe recent case of Dunn v. Hines, supra, a case very similar to tbe one before us, and this and others of like import are in support of bis Honor’s ruling tbat, under tbe terms of tbe codicil, tbe estate of W. H. Murray, tbe only child and heir at law of tbe testator and tbe chief beneficiary of bis will, became absolute on bis marriage and tbe birth of living issue. True, as defendant contends, it has been held tbat tbe courts may supply words in a will when its terms are ambiguous and tbe context and the facts and circumstances relevant to its interpretation show tbat this was tbe testator’s meaning and purpose, tbe case cited by appellant, Blum v. Gillett, 208 Ill., 473, being in illustration of tbe principle. It is true also tbat it is now held with us tbat where by will an estate is limited over on tbe contingency of a dying without issue, tbe contingency will usually be given its natural meaning and affect tbe estate till tbe time of tbe death of tbe first taker. See Buchanan v. Buchanan, 99 N. C., 308, and many other cases. But neither position can be allowed to prevail in tbe present case, where tbe testator has in express terms willed tbat tbe half of tbe estate shall go over in case bis son fails to marry and have issue, thus fixing tbe marriage and birth of issue as tbe time when tbe son’s estate shall become absolute. To uphold tbe construction insisted on by appellants, it would be necessary to add tbe words “which issue shall survive him.” Not only do these words not appear in tbe will, but there is nothing anywhere in it to indicate tbat tbe testator bad any such desire or purpose. On tbe contrary, tbe will throughout shows an affectionate confidence in bis son and bis desire and intent tbat be should be tbe chief beneficiary of bis bounty. Tbe very clause in question begins with tbe statement: “Tbat my son will naturally fall heir to everything outside of tbe annuities.” And while be might naturally be willing to affect tbe half of tbe estate with a contingency in favor of bis brother’s children while bis son was single, it is entirely unreasonable to suppose, in tbe face of this will, tbat when bis son married and bad the responsibility of a wife and children, tbat it was tbe testator’s intent to hamper half of bis estate with a condition of this character till bis death. It is not so expressed in tbe will, and there is nothing in tbe record to justify tbe Court in adding to tbe codicil tbe words required to effect such a purpose. We regard tbe case of Dunn v. Hines as decisive of tbe present appeal, and tbe .judgment of bis Honor below must be affirmed. Affirmed.