Roberts v. . Saunders

BbogdeN, J. Two questions are presented for solution, to wit: 1. Did Martba Roberts take a fee-simple estate under tbe will of ber husband, Johnson Roberts? 2. Is the deed from George H. Brown, Jr., executor of John McDonald, sufficient to convey a fee-simple estate, notwithstanding the absence of a seal on the record in the office of the register of deeds ? C. S., 4162, provides that when real estate is devised to any person that the same shall be held and construed to be a devise in fee simple unless the 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. Therefore, if the will does contain plain and express words, manifesting an intention to convey an estate of less dignity, the statutory presumption no longer applies. An examination of the will discloses that in the second paragraph a fee simple is devised Martha Roberts in these words: “I give to my beloved wife, Martha Roberts, all my estate, real and personal,” etc. In the third paragraph the language used by the testator is “all the rest of my property I give to my wife as above stated during her widowhood; if she should marry, she would be entitled to a dower on the estate in form according to the laws of North Carolina.” It is now a truism of law that the intent of the testator is the object to be sought in construing a will, and that this dominant intent must be found in an examination of the instrument in its entirety. To this end all of the clauses of a will should be reconciled, if possible, because the maker is presumed to have intended that each and every clause should take effect. This idea is thus expressed by Justice Brown in Shuford v. Brady, 169 N. C., p. 226: “It is true that in the first paragraph of his will the testator uses language which would confer upon his son Alexander a fee-simple estate to the property devised, but it is well settled that the intent of the testator is the object to be sought in construing a will, and this intent must be gathered from a consideration and examination of the entire instrument.” Adams, J., in Pilley v. Sullivan, 182 N. C., 496, says: “Accordingly, the entire will should be considered; clauses apparently repugnant should be reconciled; and effect given wherever possible to every clause and to every word.” Again, in Foil v. Newsome, 138 N. C., 115, the Court holds that “prior words of general signification may be controlled and modified as to their meaning by subsequent expressions and the intention of the testator reached from the whole will.” *194 While the second paragraph of the will gives an estate in fee simple, by statutory presumption, it will be observed that the testator does not actually state in express language that the property is given to his wife in fee simple. In the third paragraph of the will the testator says: “I give to my wife, as above stated, during her widowhood.” Hence the words “as above stated” refer to the nature of the estate the testator intended to devise as distinguished from the statutory presumption. Then, too, the fact that the estate was reduced from a life estate to a dower interest, in the event of remarriage, is a manifest indication of the testator’s purpose to devise his wife an estate of less dignity than a fee simple. We are of the opinion that the controlling intention of the testator was to give this property to his widow for her widowhood, and, in the event she married, to devise to her the same interest in the property that the law gave to widows, to wit, a dower interest therein. -This construction of the will would vest only a life estate in the widow, Martha Roberts. While it is true that in the last paragraph of the will the testator refers to the fact that he has given his children their part of the landed estate by deed, this language must be- construed in subordination to the dominant intent of the testator as gathered from the entire instrument. We hold therefore that Martha Roberts took a life estate under said will, and that the plaintiff cannot deliver to the defendants a fee-simple title to said property. In regard to the second question presented by the appeal, the mere fact that no seal appeared upon the records in the office of the register of deeds is not conclusive - as to whether or not a seal was actually affixed to said deed. Heath v. Cotton Mills, 115 N. C., 202; Strain v. Fitzgerald 130 N. C., 600. However, chapter 64, Public Laws, Extra Session, 1924, provides that “all deeds executed prior to ratification of this act by any sheriff, commissioner, receiver or other officer authorized to execute a deed by virtue of his office or appointment, in which the officer has omitted to affix his seal after his signature, shall be good and valid nevertheless; provided this act shall not apply to actions pending at the d.ate of the ratification of this act.” The act was ratified 22 August, 1924, and this suit was brought apparently on 12 February, 1926. The act referred to therefore cures any defect which might have existed in said deed. Reversed.