Jolley v. . Humphries

Stacy, C. J. Does the limitation, “To have and to hold the afore described real estate during the term of her natural life and at her death to go to Nellie G. Settlemyer,” which follows the description of the third devise in item two of the will of S. R. Humphries, also apply to the first and second devises? Our answer is, that it does not. This is the interpretation which the parties themselves placed upon the will for more than twenty years. In the first place, the ordinary signification of the words “afore described real estate” is the next preceding, which in the instant case would mean the third tract of 619% acres immediately preceding the limitation. McIver v. McKinney, 184 N. C., 393, 114 S. E., 399. Secondly, the first and second devises, standing alone, are unquestionably devises in fee to the testator’s wife. She was the primary object of his bounty, and is entitled to be accorded consideration as such. Mangum v. Trust Co., 195 N. C., 469, 142 S. E., 711. It is provided by 0. S., 4162, that when real estate is devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity. Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Washburn v. Biggerstaff, 195 N. C., 624, 143 S. E., 210; Barbee v. Thompson, 194 N. C., 411, 139 S. E., 838. Hence, if we give the language of item two its ordinary meaning, it would seem to accord with the interpretation heretofore placed upon the will by the interested parties. Dunn v. Hines, 164 N. C., 113, 80 S. E.. 410. *674 But conceding tbe purpose of item two, standing alone, to be doubtful, tbe intention of tbe testator is apparently set at rest by tbe 3rd item of tbe will (erroneously numbered 2nd), where it is repeated Nellie G. Settlemyer is to have “tract No. 3 tbe above described lands,” subject to tbe life estate of tbe testator’s wife. Tbe will was drawn by a justice of tbe peace, who was perhaps more familiar with deeds than wills. After writing out tbe second item in long band, be evidently read it over, and realizing tbe possible misconstruction which might result from its peculiar wording, be undertook to clarify its meaning by stating in tbe next item that Nellie G. Settle-myer was to bave tbe third tract, subject to tbe life estate of tbe testator’s wife. Tbe fact that no further mention was made of tbe first and second tracts would seem to indicate that be regarded it clear they were to go as originally devised to tbe testator’s wife in fee. Tbe pole-star in tbe interpretation of wills, to which all rules must bend, unless contrary to some rule of law or public policy, is tbe intent of tbe testator, and this is to be ascertained from tbe four corners of tbe will, considering for tbe purpose tbe will and any codicil or codiciles as constituting but one instrument. Ellington v. Trust Co., 196 N. C., 755, 147 S. E., 286. Giving expression to tbe same thought in McIver v. McKinney, supra, Adams, J., delivering tbe opinion of tbe Court, said: “Nevertheless, it is generally conceded that in tbe construction of a will tbe cardinal purpose is to ascertain and give effect to tbe intention of tbe testator — not tbe intention that may bave existed in bis mind, if at variance with tbe obvious meaning of tbe words used, but that which is expressed by tbe language be has employed. Tbe question is not what tbe testator intended to express, but what be actually expressed in bis will, when all its provisions are considered and construed in their entirety,” citing as authorities for tbe position: Patterson v. Wilson, 101 N. C., 586; Francks v. Whitaker, 116 N. C., 518; Chewning v. Mason, 158 N. C., 579; Dunn v. Hines, 164 N. C., 114; Taylor v. Brown, 165 N. C., 157; McCallum v. McCallum, 167 N. C., 310. Tbe case of Hauser v. Craft, 134 N. C., 319, 46 S. E., 756, cited and relied upon by plaintiffs, is not at variance with our present decision, for in tbe cited case, there was no further clause, as here, explaining tbe possible ambiguity. Affirmed.