Taylor v. . Brown

BeowN, J. This contest is between the children of Isham U. Taylor, who are seeking to partition the lands among themselves, and the administrator of the said Elizabeth Taylor, who seeks to subject the land to the payment of debts, contracted by Elizabeth Taylor in her lifetime, other than funeral expenses. It is admitted that Elizabeth Taylor made no disposition or conveyance of any kind of the lands in controversy during her lifetime, and, therefore, it is unnecessary to determine whether she took a life estate under the will or a determinable fee. Under these circumstances, if she did hot take a fee simple, the limitation over vested the title at her death in the children of the testator under the fourth paragraph of her will. It is elementary that a will must be so construed as to effectuate the evident intent of the testator. Lynch v. Melton, 150 N. C., 595; 27 L. N. S., 773; Fellowes v. Durfey, 163 N. C., 305. The primary purpose is to ascertain the intention of the testator from the language used by him, taking the will as a whole, and not separate parts of it. It is manifest from the context of this will that the testator did not intend to give his wife an absolute estate in his lands under the first clause of his will; otherwise the words used in the fourth clause would be meaningless and unnecessary. It is the duty of the courts in construing a will to give effect to every part of it, if possible. The testator’s children were evidently in his mind when he made his will, and were as much the objects of his bounty as his wife. He evidently intended to provide for the care of his wife as long as she lived and then that his children should share his estate between them. It is contended that by use of the words in paragraph 4, “that all of the property then left after paying her burial expenses shall-be equally divided among all of my children,” testator gave to the widow a jus disponendi, both as to lands and personalty, and that such right is inconsistent with any other estate than an absolute one, and enlarges her estate into a fee. *162 This subject was very thoroughly threshed out in the case of Herring v. Williams, 158 N. C., 1, and it was there held that a devise and bequest to A. of .real and personal property to have and to hold during the term of her natural life, and at her death the said property or so much thereof as may be in her possession at the time of her death is to go to B., her heirs and assigns forever, gave A. only a life estate in the lands, with remainder to B. in fee. It was further held the words, “or so much thereof as may be in her' possession at the 'time of her death,” referred to personal property only, and not to the realty, which is of a permanent nature. • In the present case the question as to whether the widow had any power to sell the land and convey it in fee, provided she exercised it during her life, does not arise, for she 'never attempted to exercise it. A case which bears strongly upon the one under consideration is Smathers v. Moody, 112 N. C., 791. John Leatherwood made a will giving and bequeathing to his wife four tracts of land, some negroes, cattle, household and kitchen furniture, etc. “At her death they shall descend to and become the property of my three blind sons, towit, Edwards, Elias, and Jason, to be equally divided between them for their support; to be managed for them by my executor. In case one of them should die, then said property with its increase shall descend to and become the property of the other two; in case two of them shall die, then the aforesaid property shall inure and become the property of the remaining one; at hi§ death all the property that remains I will to be sold by my executor to the best advantage, and the moneys arising from said sale shall be equally divided among all my grandchildren of whatever name.” It was contended that the will gave the sons a general estate with a power of disposition, and, therefore, they had a fee-simple estate in the lands, and in a contest between the administrator and parties representing the survivor of the three blind sons it was held by the Court that they had but a life estate. The Court says: “We think it very plain that the testator’s intention was that upon the happening of this event — the death of the last *163 slirvivor of the three blind sons — all the property committed by him to his executor for their support, the land and as much of the personal property as had not been consumed or lost, should be sold then for division as above stated.” Smathers v. Moody, 112 N. C., 791. It is contended that the fourth item of Isham Taylor’s will is inconsistent with the first. We think that both items are entirely consistent and reflect clearly the intention of the testator to provide for both his widow and children; but if they were inconsistent, there is no reason to strike out the fourth item. It is generally held that if two clauses in a will are entirely inconsistent, one with the other, that the latter must prevail, upon the principle that the first deed and the last will must stand. But to produce this effect, however, the two clauses must, be wholly inconsistent and incapable of reconciliation. If this can be reconciled, they both can stand — upon the principle that every part of a will shall have some effect given to it. Baird v. Baird, 42 N. C., 266; 40 Cyc., 1417. We have examined with care the cases cited in the brief of the learhed counsel for defendants, and we do not think any of them conflict-with the construction we have placed upon the will of Isham Taylor, and we do not deem it necessary to review them. The judgment of the Superior Court is Affirmed.