McCallum v. . McCallum

Hoke, J., after stating the case: It is urged for defendants that inasmuch as the will of John McCallum, in express terms, confers a life estate in the property on the unmarried daughters, this by correct inference should exclude them from any and all participation in the remainder, and that the second item of the will amounts in effect to devise of this remainder to his other children; but in our opinion such an interpretation is not permissible. It is true, as shown in the authorities cited by the learned counsel, among others, Austin v. Austin, 160 N. C., 367, that when a man has made a will, the presumption is that he thereby intended to dispose of his entire property, and that the instrument must be construed in reference to that presumption; but the position is recognized only when the language and meaning of the will is sufficiently indefinite as to permit of construction, and is not allowed to prevail when, from the language used, the meaning is clear and explicit. In wills, as in the case of deeds and statutes, we must, in the first instance, refer to the language employed, and if this is “free from ambiguity and doubt and expresses plainly, clearly, and distinctly the sense” of the testator (Allen, J., in Kearney v. Vann, 154 N. C., 311), there is then no room for construction, and the courts must give effect to the will of the testator as he has seen proper to express it. The principle was applied in the case of deeds in Campbell v. Cronly, 150 N. C., 469; Wilkins v. Norman, 139 N. C., 42, and has been frequently stated with approval in cases involving the interpretation of wills. Whitehead v. Thompson, 79 N. C., 450; Foil v. Newsome, 138 N. C., 115; Sain v. Baker, 128 N. C., 256; Alexander v. Alexander, 41 N. C., 231. In this last case, speaking to the argument made in behalf of the claimants, “that the testator evidently did not intend to die intestate as to any of his property,” Nash, J., delivering the opinion, said: “This may be so, and very likely was, but in seeking for his intention we must not pass by the language he has used. If we do, we shall make the wilLand not expound it.” In our case the testator, in clear and *312 explicit terms, confers a life estate on Ms widow, and then on his unmarried daughters, and is silent as to an y other or further disposition of the property. His evident purpose was to provide a home for his widow and their daughters while they.were single — a desirable and perfectly legitimate disposition of his property (In re Miller, 159 N. C., 123), and neither in the item stated nor in any other portion of the will is there any expression authorizing the Court to give the devise another or a different meaning than that the testator has himself clearly expressed. There is no error, and the’judgment of the Superior Court must be Affirmed.