Tillett v. . Aydlett

Ashe, J. (after stating the facts). A question is raised by these exceptions as to the proper construction of the will of Nathan Overman upon the point “whether A. A. Tillett took an estate in the town property of the testator by devise or by inheritance?” The defendant contended she took an estate for life in said lands by descent, and thereupon, under the statute, these lands should be first sold for the debts of the testator. This contention makes it necessary to construe the will of Nathan Overman, not so much because it is absolutely necessary to do so in determining this ease, for there is another point in it which is fatal to the defendant’s appeal, but to put that question out of the way in the controversies that may arise after the sale, with respect to contribution, &c. *20 A. A. Tillett is the only heir of N. Overman, deceased, and it is a well known maxim of the law that an heir cannot be disinherited except by express devise or necessary implication, and that implication has been defined to be, such a strong probability that an intention to the contrary cannot be supposed. Hence it has become a settled distinction, that a devise to the testator’s heir after the death of A. will confer on A. an estate for life by implication; but that under a devise to B., a stranger, after the death of A., no estate will arise to A. by implication. And the reason of this distinction is, it is absurd to suppose that the testator intended to devise real estate to his heir at the 'death of “A., and yet that the heir should have it, in the meantime, which would render the devise nugatory.” Jarman on Wills, p. 465. But this is only a rale of construction adopted to effectuate what is supposed to be the will of the testator, and must yield to other rules of interpretation which more appropriately apply. -For Chief Justice RufKIN, in Proctor v. Pool, 4 Dev., 370, said “that no positive rule can be laid down for ascertaining the intention of the maker of a deed or other instrument, but his intention is to be collected from, the whole instrument taken together.” If the rule above quoted from Jarman should be adopted in the construction of this will, then we concede that A. A. Tillett would take an estate for life by descent, for the ulterior remain-dermen are not the heirs of the testator at the time of his death, and she could take no estate for life under the will by implication. But that rule must yield when it comes in conflict with another rule which is held to be the safest guide in the interpretation of wills, which is, that the intention of the testator, when it can be indisputably ascertained, shall prevail; and the intention may be collected either from the particular provision or the general context. Tn other words, as said in Proctor v. Pool, the whole instrument is to be looked at, and then the inquiry made, “can it be found out from this what the party means?” *21 In looking at the will under consideration, it is manifest that the testator did not intend to die intestate as to any of his property, and it is no less evident, that his daughter, A. A. Tillett, was one of the main objects of his bounty. In the first paragraph of his will he disposes of all of his personal estate; in the second, he gives the Harvey farm and the lands on Bluff Point to his wife and daughter, which upon the death of her mother she took by purchase, the one moiety by descent from her mother and the other by devise from her father. The third paragraph gives the house and lot where he resided in town to his wife, and, in case she should survive her daughter and her children, ail his town property. But should his daughter survive his wife and die without leaving issue of her body begotten, in such event his daughter should have power to devise all his estate not before devised; but should she have children at her death, then to such of them as may survive her. We think there can be no question as to the construction of this devise to his daughter and her children. It is evident it was the intention of the testator to give to his daughter, Alice, all his town property of every class for life, and after her death, to such of her children as might survive her— aud to show that an estate for life was only intended to be given her, the testator proceeds to give her power to devise and bequeath all his estate not before devised in fee, in the event of her dying without leaving children. Why should he have conferred upon her such a power, if he had not intended and supposed that he had given her only a life estate in the town property? If, then, she took an estate for life by devise, as we hold she did, the clerk had the right to exercise his discretion in the order of selling the lands; for he is authorized by section 1444 of The Code, to order a sale of the whole or any specified parcel thereof that may be most advantageous to the estate. Tillett v. Aydlett, 90 N. C., 551. But, as we have intimated, there is a point taken by the defendant in this court which is fatal to the appeal. *22 Plere, the defendant Aydlett excepted to the judgment rendered by the judge. In case of appeals like this to the judge of the district from the ruling of the clerk upon a question of law, it is the duty of the judge to transmit his decision to the clerk, that he may proceed with the case according to law. The Code, section 255; Brittain v. Mull, supra; and very clearly intimated in Moore v. Ingram, Ibid., 378. Our conclusion, therefore, is, that the judgment rendered in the court below by his Houor must be reversed, except so far as it overrules the exceptions of the defendant and confirms the ruling of the clerk; and the case is remanded that the clerk may proceed with the case according to law. Before concluding we take the opportunity of correcting an inadvertence into which this Court fell in the case of Moore v. Ingram, supra, where it is said, “the Judge in term has no jurisdiction over the settlement of the intestate’s estates,” &c. That was a special proceeding like this, instituted before the clerk to sell land to make assets for the payment of debts, and the Judge of the Superior Court, as here, rendered a final judgment. The expression was used with reference to his powers in such a case, not adverting to the Act of 1876, The Code, §1511, which gives the right of action ’in the Superior Court in term against executors, &c. Reversed in part, and remanded.