In Re Estate of Wright and Wright v. . Ball

*468 Clarkson, J. The question involved: Does the “family agreement” set forth in the record require that the rent collected from real estate, between, the death of the testator and the date of said agreement, be distributed in accordance with the terms of said agreement, or did such rents remain the property of the life tenant Miss Mary E. Wright, under the will of R. H. Wright, Sr. ? We think it should be distributed in accordance with the terms of the “family agreement.” R. II. Wright, Sr., died on 4 March, 1929, leaving a last will and testament, containing the following provision: “Item I. I give, devise, and bequeath unto my sister, Mary E. Wright, for her natural life, all of my property of every kind and character.” The other provisions of the will are not necessary to be stated. A caveat to said will was filed, and a “family agreement” entered into in reference to the property of R. H. Wright, Sr. From 4 March, 1929, the date of R. II. Wright, Senior’s death, until the “family agreement,” on 5 November, 1929, the income from the real estate left to Mary E. Wright for life under the will, amounted to $21,620.95. If there had been no “family agreement” under the will this income would have gone to Mary E. Wright. The controversy is thus stated in the findings of fact (9) : “That the Ball group contend that under the terms of the 'family agreement’ the said sum of $21,620.95 was distributable two-thirds to Miss Mary E. Wright, or her executors, and one-third to the Ball group. The executors of Miss Mary E. Wright contend that all of said income should have been paid to Miss Mary E. Wright during her life time, and after her death that the same is payable to said executors.” The “family agreement” was entered into on 5 November, 1929, by Mary E. Wright and the Ball group and others. The “fámily agreement” seems to have been carefully drawn and goes into minute detail, the sections which we think material for a decision of this controversy are: “2. Subject to the above provisions for Miss Mary E. Wright, the remainder of the estate of B. E. Wright shall be divided into three equal parts, one-third of which shall be delivered, conveyed or paid to Mrs. Lucy W. Ball, or her legal representatives, in fee'simple, and two-thirds to the First National Bank of Durham, N. 0., trustee, in trust for the use of Miss Mary E. Wright, for the term of her natural life, etc. . . . (d) The sum of $2,402.25 heretofore paid to Miss Mary E. Wright shall be charged by the executors in their full settlement as disbursed for a debt and she shall not be required to account for the same.” What does the language mean “the remainder of the estate of R. II. Wright?” In Black’s Law Dictionary (2d ed.), p. 439, is the following: "Estate. 1. The interest which any one has in lands, or in any other subject of property,” etc., citing numerous authorities. At p. 440: 2. In another sense, the term denotes the property (real or personal) in which *469 one bas a right or interest; the subject-matter of ownership; the corpus of property. Thus, we speak of a Valuable estate,’ ‘all my estate,’ ‘separate estate,’ ‘trust estate,’ etc. This, also, is its meaning in the classification of property into ‘real estate’ and ‘personal estate.’ ” In Hunter v. Husted, 45 N. C., at p. 142, Nash, C. J., for the Court, said: “The word estate means ordinarily the whole of the property owned by any one, the realty as well as the personalty.” Then again, the detail of the $2,402.25 is set forth. This sum had been paid Mary E. Wright. It was specially provided in the “family agreement” that she should not be required to account for same. If the entire $21,620.95 income from the real estate was to go to Mary E. Wright, why was it not mentioned in the “family agreement” — expressio unius est exclusio alterius? On the contrary it was specially set forth that the remainder of the estate of E. H. Wright, Sr., two-thirds to be distributed to the so-called “Wright group” and one-third to the “Ball group.” Construing the “family agreement” as a whole, we think it was the intention of all parties to make a final settlement of the controversy and the language used so indicates. For the reasons given the judgment of the court below is Eeversed.