Hunt v. . Jones

AlleN, J. The decision of the controversy depends on the construction of the fourth item of the will of W. A." Marcom, and if this stood alone it would not be free from difficulty because of the use of “bodily heirs” twice in the same item. We must, however, look at the whole will and not at detached portions, as “The primary purpose is to ascertain the intention of the testator from the language used by him, taking the will as a whole, and not separate parts of it.” Taylor v. Brown, 165 N. C., 161. Again: “The first taker in a will is presumably the favorite of the testator, Rowalt v. Ulrich, 23 Pa., 388; Appeal by McFarland, 37 ibid., 300; and in doubtful cases the gift is to be construed so as to make it as effectual to him as soon as possible or as soon as the language will warrant. Wilson v. McKeethan, 53 ibid., 79. And, too, the law favors the early vesting of an estate, to the end that property may be kept in the channels of commerce. Underhill on Wills, sec. 861; Hillard v. Kearney, 45 N. C., 221; Galloway v. Carter, 100 N. C., 111, and cases there cited.” Dunn v. Hines, 164 N. C., 120. It is also a rule of construction that the dominant idea pervading the whole will must control, and that minor considerations must yield if in conflict with it; and it may well be said of the will before “us, as was said in Lassiter v. Wood, 63 N. C., 363: “It is apparent that the leading purpose of the testator was to make all his children equal. -The purpose of the testator, as gathered from the will, is always to be carried out by the court, and minor considerations, when they come in the way, must yield. ‘ Especially is this so when the purpose is in consonance with justice and natural affection.” “The general and leading intention of the testator must prevail where it can be collected from the will itself; and particular rules of construction must yield something of their rigidity if necessary to effect this purpose.” Alexander v. Summey, 66 N. C., 582. *554 Tbe dominant idea in tbe will is equality among tbe children, and if special solicitude is shown in favor of any, it is in behalf of tbe two daughters Eidellia and Cora. In the first item of the will he gives each of these daughters $300 and certain personal property, “to make them equal with the rest of my children that I have given them heretofore.” In the second he provides for his wife and in the .third for a grandchild. He values the land in the fourth item at $2,000, and gives to each of the daughters $500 of bank stock, making the share of each $1,500, and in the fifth, sixth, and seventh items he provides for his other three children and values each share at $1,500. This manifests a clear purpose on the part of the testator to divide his property equally among his children and to place no limitations upon their use and enjoyment of it, except in the single instance of one of the daughter dying “witEout bodily heir,” which when used in this connection is usually interpreted issue or children. Faison v. Moore, 160 N. C., 148. In the first part of the item he gives the land in fee to the two daughters while living together. Why should he wish to change it to an estate in common with their children, “if they see proper to separate” ? The language is, “to be equally divided between them and their bodily heirs,” which indicates a purpose, in the event of a separation, to have an equal division between the daughters, and that the share of each should belong to'her and her heirs, with further provision that if either died without children her share should belong to the other. This construction is also strengthened by the fact that there is no disposition of the "property if both daughters should die without issue, and no residuary clause. If, therefore, the estate in fee is in the two daughters, and upon the death of either without children her interest belongs to the survivor, it follows that the deed of both of them will convey and pass the entire title, and, if so, the plaintiffs can make a good title for the land in controversy. Affirmed.