Bolling v. . Barbee

Brogden, J. The plaintiff claims a one-fifth undivided interest in the land of the testator, Madison Barbee, by virtue of the fact that his wife, Fannie Barbee Bolling, took a vested remainder under said will, which she devised by last will and testament to him. The defendants contend that Fannie Barbee Bolling took only a contingent remainder in the land of Madison Barbee by virtue of the fact *790 that there was a preceding life estate to the widow of the testator, and that, as Fannie Barbee Bolling died prior to the death of the life tenant, her interest in the property did not vest, and therefore her will devising the land to her husband was a nullity. The original will, dated May, 1903, dpubtless created contingent remainders only, but the codicil to the will, dated 28 July, 1913, must be fitted to the original will and construed as a part thereof. Thus, in Darden v. Matthews, 173 N. C., 186, the Court declares: “A codicil is a part of a will, but with the peculiar function annexed of expressing the testator’s after-thought or amended intention. It should be construed with the will itself, and the two should be dealt with as one instrument.” It appears from the record that at the time the original will was made the testator had two unmarried daughters, to wit, Fannie and Effie, but that these daughters had married several years prior to the date of the codicil. In the original will, in items 4 and 5 thereof, it is apparent that the testator intended to provide for his wife and his unmarried daughters until their death or marriage; but, upon the marriage of these daughters, a different situation arose. Thereupon, in 1913, the codicil was made, “expressing the testator’s after-thought or amended intention.” It will be observed that while the codicil refers in specific terms exclusively to item 5 of the original will that the testator at the same time expresses his intention to make changes “in the division of my real estate.” This language is broad enough to apply to the entire division of the whole estate. The last utterance of the Court upon the question is by Justice Adams in Jessup v. Nixon, ante, 640, quoting the principle as stated in Mercer v. Downs, 191 N. C., 203: “Indeed, the prevailing rule seems to be that if an estate is given by will to the survivors of a class, to take effect on the death of testator, the word 'survivors’ means those living.at the death of testator; but if a particular estate is given and the remainder is given to the then survivors of a class, the word 'survivors’ means those surviving at the termination of the particular estate.” The opinion then proceeds: “This statement accords with the general rule that words of survivorship in a will, particularly when used in connection with a general gift, refer to the death of the testator as the time at which the survivorship will be determined, unless it is made to appear that the testator intended to refer to a time after his death; but when the gift to the survivors is preceded by a particular estate for life or years, words of survivorship, in the absence of anything indicating a contrary intention usually refer to the termination of the particular estate.” When the codicil is fitted into the original will, and the language of the original will, totally repugnant to the codicil, eliminated, there would be no words of survivorship in this will, and the principle announced in Williams v. Sasser, 191 N. C., 453, and that line of cases would govern this case. *791 In Jessup v. Nixon, supra, it was held that if the devise to the survivors was preceded by a particular estate for life or years, words of survivorship, “.in the absence of anything indicating a contrary intention, usually refer to the termination of the particular estate.” In our case the codicil itself indicates an “amended intention” to the effect that the words of survivorship should not refer to the termination of the particular estate, but rather to the death of the testator. This “amended intention” finds strong support in the fact that after the original will was made and before the codicil was executed, the testator had conveyed to one of his children, to wit, Edgar P. Barbee, 40 acres of land, and thereafter in the codicil excluded him from participation in the estate by reason of the fact that he had already made this conveyance. We therefore hold that Fannie Bolling took a vested remainder in the estate of her father, Madison Barbee, and that the plaintiff, under and by virtue of the terms of her will, succeeds to her rights. Power Co. v. Haywood, 186 N. C., 313; Williams v. Sasser, 191 N. C., 453; Jessup v. Nixon, ante, 640. Affirmed.