Monk v. . Kornegay

Seawell, J. Few judicial expressions have been more widely quoted than that of Justice Holmes in Towne v. Eisner, 245 U. S., 418, 62 L. Ed., 372: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used.” We *199 tbink its application to tbe case under consideration will become clear as we proceed. Fortunately for tbe continuity of human knowledge, tbe more important intellectual edifices wbicb bave weathered tbe ages have not been built wholly of tbe softer material mentioned by tbe great jurist. In science and philosophy there are words — and even phrases — of such crystalline structure that they bave standardized tbe wave lengths of human thought for a thousand years. But the common man, in his everyday business, is not expected to select words cut with jewel-like precision, offering facets to every light, if the language afforded them. And we think here we are dealing perhaps as much with the peculiarities of our language as we are-with its free and rather casual idiomatic use. Perhaps the best mode of expression is that which conveys the thought with the least effort on the part of those who are to receive it. But even the most careful propositor ordinarily does not expect his expression to be met with obduracy or a mental attitude which would compel resort to the technique of the dialectician. Students of semantics tell us our English language suffers the handicap of all analytic languages — it has not the compactness, sometimes not the precision, of more inflectional languages. It may lean more strongly on the awareness or alertness of those to whom the communication is addressed — strict attention to the subject matter, the occasion, and the attendant circumstances — all of which are important in any language. In fact, when we are called upon to find the meaning of words in a document, we discover that in our formal rules of construction we have merely activated those principles which intelligent persons subconsciously and spontaneously apply to the understanding of communications which are addressed to them. Hence, resort to these aids of construction will not be denied by the court where an ambiguity in a written instrument or an equivocal expression upon which the intent materially depends justifies it under the established practice of the court. The plaintiffs say they belong to the fortunate class of beneficiaries designated generally in the trust set up in the Annie Kornegay deed as those who “are born” to Richard Kornegay — that this expression is grammatically all-inclusive and needs no construction. We think this view is too optimistic. There is about it a suggestion of absolutism and literalness which we do not think justified by the language itself or the circumstances under which it was shown to have been used. As to the language itself we cannot but refer to the lack of inherent certainty in defining the class intended to be included — due to the varied and accommodating use of the verb “be” — either singly or in combination with other more significant words. ¥e are told that the Greek verb is capable of expressing finer shades of meaning, in the time relation, than *200 that of any modern language. However, when used in any other sense than to express the mere fact of existence, few “parts of speech” in the English language have less fixed significance than the present indicative of the verb fee. It is relational in character, often subject to elision without affecting the sense. It is equative, comparative, attributive. It lives by borrowing — and never keeps what it borrows. "While its tense form is present, this often denotes a mere' currency with some event or circumstance that actually fixes the time relation. It is so versatile that it serves with almost equal facility the past, present and the future, depending on where the speaker stood in time, space, or circumstance, when the utterance was made. It is truly the universal joint of the linguistic machinery. The expression over which the controversy is pitched is “any other children that are born to said Richard Kornegay in lawful wedlock.” Does this reference include plaintiffs, children of the first marriage, who have already been born to Richard Kornegay, or does it refer to the children of the second marriage who may be born to him during the subsistence of a trust made, in part, for their benefit ? Ordinarily, the intent of the grantor must be found “within the four corners of the deed.” Triplett v. Williams, 149 N. 0., 294, 63 S. E., 70. But where the intent materially depends on ambiguous or equivocal expressions, resort may be had to extrinsic aids to construction, within the bounds of established practice. We think the facts of this case justify the admission of evidence dehors the deed to explain its terms. Once this is conceded, it follows that the instrument, in the respect thus aided, must be considered in the light of the circumstances attending its execution in order to.discern the intent of the grantor. Among the circumstances to be considered are the relation of the parties to each other and to the property, and generally all sources of inquiry as to things which might have acted on the mind of the grantor. Central Bank <& Trust Co. v. Wyatt, 189 N. C., 107, 129 S. E., 93; Seawell v. Hall, 185 N. C., 80, 116 S. E., 189; Patrick v. Jefferson Standard Life Ins. Co., 176 N. O., 660, 97 S. E., 657. We do not find the evidence introduced for this purpose objectionable in content or mode of presentation. Allen v. Allen, 213 N. C., 264, 195 S. E., 801. In the light of the material from which the trial court had to draw its conclusions, the whole matter may be summed up in this: The plaintiffs argue that if the grantor had intended to exclude them from the trust set up in the Annie Kornegay deed, he could have done so in direct terms. The defendants reply that if he had intended to include the plaintiffs, the whole vocabulary was open to him with which to say so. We are inclined to think the edge of the argument is with the defendants. However, the trial judge, in effect, suggests to both sides that more importance should *201 be attached to the groove in which the Kornegay mind was probably working when the provisions of the deed were formulated. All the deeds were concurrently executed. He had just provided for the children of the first marriage, of whom there would be no more, and expressly stated that the gift constituted all of his estate he intended them to have. Presumably, he turned to his second, living, wife, and the children of that marriage, to provide for them in turn. He had remarried late in life. There were three children of this marriage in esse, and the possibility of more, born to him. There was the further possibility, mentioned elsewhere in the deed, that this wife might remarry after his death, and in that event she might have children for the second husband. It is reasonable to suppose that he did the natural thing under such circumstances — took care of his wife, the children already born of the marriage, and those which might still be born to him, without further thought of those for whom he had provided in the contemporaneously executed deeds. A naked trust of this kind could have but one purpose- — to negative the exclusiveness of the named children as beneficiaries of the gift and put them on an equal footing with children of the same class, born to Kornegay of that marriage. The same device is used in all the contemporary deeds for this purpose. Contra, the category thus set up, the plaintiffs demand to be admitted to the benefits of the trust, under its general provision, sine nomine, although their names were well known, to the exclusion of children who might afterwards be born to the grantor by the second marriage, and for whom every principle of parental affection and social duty demanded consideration. Under these circumstances, we are of opinion that the court below correctly construed the disputed clause in the deed as not including the plaintiffs. The construction of the deed and determination of the controversy was for the court below upon the deed itself and the evidence adduced. We merely assign reasons that constrain us to affirm the conclusions there reached. The findings of the court were made upon competent evidence, and we find no error of law in the trial. The judgment is Affirmed.