Hornaday v. . Hornaday

ERVIN, J. This appeal necessitates the interpretation of the seventh item of the will of R. G. Hornaday. It is elementary learning that the object of all construction is to ascertain the intent of the testator. Jones v. Jones, 227 N. C., 424, 42 S. E. (2d), 620; Robinson v. Robinson, 227 N. C., 155, 41 S. E. (2d), 282; Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356. This intent must be determined from the language used by the testator. Smyth v. McKissick, 222 N. C., 644, 24 S. E. (2d), 621; Sharpe v. Isley, 219 N. C., 753, 14 S. E. (2d), 814; Whitley v. Arenson, 219 N. C., 121, 12 S. E. (2d), 906. All of the provisions of the will must be considered in the light of the presumption “that every part of the will indicates an intelligent purpose.” Williams v. Best, 195 N. C., 324, 142 S. E., 2. Moreover, it is to be assumed that the testator understood the provisions of his will. Lunsford v. Yarbrough, 189 N. C., 476, 127 S. E., 426. When the seventh item of the will of R. G. Hornaday is read in the light of these principles, his intention as therein expressed is plain. He intended to give his son, Victor C. Hornaday, an undivided one-third part of the residue of his estate, subject to the option of his daughters, Swannie Hornaday and Julia Hornaday Ross, to purchase such undivided one-third part of such residue from Victor C. Hornaday for the sum specified, and he intended such option to be exercised by Swannie Hornaday and Julia Hornaday Ross, if at all, during the lifetime of Victor C. Hornaday. Any other interpretation would set at naught the highly significant words of the testator to the effect that the testamentary option was to be exercised by his daughters by paying the specified sum to a named person, to wit, the testator’s son, Victor, and that the property subject to the option was the share of a named person, to wit, the testator’s son, Victor, in the residue of the testator’s estate. Besides, any construction of the seventh item of the will of R. G. Hornaday extending the efficacy of the testamentary option beyond the lifetime of Victor C. Hornaday would deny any intelligent purpose to the expressed desire of the testator that the sum to be paid on the exercise of the option should be payable as follows: “Two thousand dollars ($2,000.00) cash, with the balance of five thousand dollars ($5,000.00) to be placed in secure trust to be paid five hundred dollars ($500.00) per year for ten (10) years.” It seems reasonable to infer that the father put this provision in his will for the intelligent purpose of protecting his son against some familiar improvident trait in financial matters. Be this as it may, it is certainly not conceivable that R. G. Hornaday would have prescribed any such mode *167 of payment if be had intended for the testamentary option to be exercised against his son’s personal representative, or heirs, or next of kin, or devisees, or legatees, whom he had no means of knowing or identifying when he made his will. A painstaking examination of the authorities fails to reveal any precedent dealing with the exact factual situation here considered. But the conclusion here reached finds abundant support in sound decisions in other jurisdictions holding, in substance, that when a will gives an option to purchase to a named person, the option is personal to the optionee, and ends when the optionee dies without having exercised it. In re Ludwick's Estate, 269 Pa., 365, 112 A., 543; Adams v. Adams, 95 W. Va., 187, 120 S. E., 590; Weitzmann v. Weitzmann, 87 Ind. App., 236, 161 N. E., 385; In re Hauser, 50 N. Y. S. (2d), 709. For the reasons given, we hold that the option given the plaintiffs, Swannie TIornaday and Julia Iiornadav Boss, by the seventh item of the will of E. G. Iiornadav did not extend beyond the lifetime of Victor C. Iiornadav. and that the judgment of the court below to the contrary must be Reversed.