Mangum v. Durham Loan & Trust Co.

ClaeKSON, J. The plaintiffs contend that upon the death of Bart Mangum the principal, or corpus, of the fund should be turned over to his children, the plaintiffs, who were living at his death, “share and share alike.” On the other hand, the defendant contends that it should pay over to the children of Bart Mangum, share and share alike, not the principal, or corpus, of the fund, but the proceeds of said fund, or, in other words, the income thereof. We think the contention of plaintiffs correct. The primary purpose of construing a will is to ascertain and give effect to the intention of the maker. The intention of the maker must be ascertained from the whole instrument. Patterson v. McCormick, 181 N. C., 311; Pilley v. Sullivan, 182 N. C., 493; Walker v. Trollinger, 192 N. C., 744; Williams v. Best, ante, 324; Brown v. Brown, ante, 315. The trust fund in controversy was created from the residuary part of the estate of Rebecca Ella Mangum. “When a will is executed the reasonable and natural presumption is the testator intends to dispose of his entire estate. There is no presumption of an intention to die intestate as to any part of his estate when the words used by the testator will clearly carry the whole. Therefore, in the construction of doubtful clauses in a will, that interpretation is to be adopted if possible which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of his property. The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate. An intestacy is a dermer ressort in the construction of wills, and it has been said that the abhorrence of courts to intestacy under a will may be likéned to the abhorrence of nature to a vacuum.” 28 R. C. L., sec. 189, at pp. 227-8. See Powell v. Wood, 149 N. C., p. 235; Austin v. Austin, 160 N. C., 367; Kidder v. Bailey, 187 N. C., 505. It will be noted by reference to paragraph 20 of said will that the testatrix gave to each of her two sisters a fund equal to that created for the benefit of her brother, Bart Mangum. Further, that said paragraph provides that in the event that either of her sisters were not living at the time of her death, then that such share should go to the said sisters’ heirs at law. This would tend to show that it was the intention of the testatrix that the trust fund created for the benefit of her brother, Bart Mangum, should at the time of his death be paid over to the children of her said brother in like manner as was provided therein for the children of her two sisters. No further disposition of said trust fund was made by the testatrix other than to the children of the said Bart *472 Mangum. This would further indicate that the testatrix intended that the children of Bart Mangum should receive the said fund at the death of the said Bart Mangum. If any other view is taken, then at some time in the future a part of the estate of the said Rebecca Ella "Mangum would become intestate. The word proceeds is one of equivocal import. In the interesting decision of Mr. Justice Bradley in Phelp v. Harris, 101 U. S., 370, 25 L. Ed., 855, speaking of proceeds, he says: “This is also a word of great generality.” Halliburton v. Phifer, 185 N. C., 366. See Benevolent Society v. Orrell, ante, 405. “Under our form of government the law favors the early vesting of estates to the end that property may be kept in the channels of trade and commerce.” Walker v. Trollinger, 192 N. C., p. 744. “In the interpretation of a will the dominant or primary intention, gathered from the whole thereof and all its provisions, must be allowed to control, and a particular and minor intent is never permitted to frustrate a general and ulterior object of paramount consideration. Accordingly in interpreting wills favor will be accorded to those beneficiaries who appear to be the special objects of the testator’s bounty.” 28 R. C. L., part sec. 179, at page 219. The two sisters, the brother-in-law and Bart Mangum and the children of her sisters and brother were special objects of her bounty. It will be noted again, that under paragraph 20 of the will, the testatrix divided the rest and residue of her estate into four equal parts. The two sisters’ parts are given to them absolutely, if they be living at her death; if not. to their heirs at law per stirpes. One part to her brother-in-law absolutely. No doubt, for some good reason, her brother’s part was to be held in trust and the net proceeds paid over to him during his lifetime, with the idea, perhaps, that it would meet his needs. Then distribute the proceeds of said trust fund to the children of her brother living at the time of his death, share and share alike. We are forced to the conclusion that the corpus is meant. We think that the intention of the testator was to create a trust fund for the benefit of her brother during his lifetime, and at his death the corpus, or principal, should be distributed, share and share alike, to the children of her brother living at his death. The judgment of the court below is Affirmed.