Satterwaite v. . Wilkinson

AlleN, J. The object of construction in passing upon the provisions of a will is to discover and effectuate the intent of the testator. It is presumed that every part'of the will “expresses an intelligent intent, i. e., means something” (Wooten v. Hobbs, 170 N. C., 214), and this intent is not only to be “gathered from the language used, if possible” (Freeman v. Freeman, 141 N. C., 99), “but in seeking for his intention we must not pass by the language he has used. If we do, we shall make the will and not expound it.” Alexander v. Alexander, 41 N. C., 231, in McCallum v. McCallum, 167 N. C., 311. *40 It is also a rule of construction that “Every part of a will is to be considered in its construction, and no words ought to be rejected, if any meaning can possibly be put upon them. Every string should give its sound” (Edens v. Williams, 7 N. C., 31), or, as expressed by Gaston, in Dalton v. Scales, 37 N. C., 523, “In the interpretation of wills it is the clear duty of the court to give effect to each and every part of the instrument, and, if it be possible, to reconcile all seeming repugnance between its different provisions. As the instrument is an entire act, intended to operate altogether and at the same moment, it is not to be admitted, unless the conclusion be irresistible that the testator had two inconsistent intents, and has left a declaration of both these inconsistent intents as constituting a law for the disposition of his property”; and also: “When language is used having a clearly defined legal signification, there is no room for ’construction to ascertain the intent; it must be given its legal meaning and effect.” Campbell v. Cronly, 150 N. C., 469. We must then examine the whole will; must reconcile, if possible, apparently conflicting provisions; must assume that all language used means something, and give proper effect to words having a definite legal meaning, in the absence of a contrary intent, clearly expressed. When these principles are applied to the terms of the will before us, we find that the testator devises the land in controversy to his son, George T. Tyson, in language which the plaintiffs do not contend, standing alone, would not confer a fee-simple estate, and he then provides that if his son is of sound mind when he reaches 21 ye'ars of age (and both facts are found to exist), “the property is to be at his own disposal.” The ordinary meaning of “property at his own disposal” is that it is property which he can dispose of; get rid of; part with; relinquish; alienate; effectually transfer (3 Words and Phrases, p. 214), and this is the interpretation put on similar language in Parks v. Robinson, 138 N. C., 269, in which it was held that “Where a testator died, leaving a widow and minor children, and by his will gave to his wife ‘during her natural life and at her disposal, all the rest, residue, and remainder of his real and personal estate/ that the wife was given an estate for life, with a power to dispose of the property in fee.” This authority is approved in Mabry v. Brown, 162 N. C., 221; Griffin v. Commander, 163 N. C., 232, and in other cases. We have, then, an express power in the son to dispose of, to convey, without restriction and without qualification that it should not be exercised if he married and had children born to him, and we cannot refuse to give effect to this important provision unless irreconcilable with other parts of the will, and we do not think it is so. *41 The sou was not of age, was unmarried, and bad no children, when the will was made, and be and the wife of the testator were the .only persons living to whom was due a moral or legal obligation, and they were the principal objects of his bounty. He gives his wife a life estate in real and personal property, with power to dispose of any of it except land and negroes. He then provides that upon the death of the wife the son shall be the “entire heir,” but that if he dies leaving neither wife nor children, the property shall belong to two brothers of the testator, and that if he leaves wife and children they are to be ’the “heirs”; but he also says: " “N. B. — Should our son, George T. Tyson, live to be 21 years old and of sound mind, the property is to be at his own disposal.” If this does not mean the full and unqualified power to convey after he became 21, it means nothing, as he must die leaving wife and children or having none, and in one event the wife and children would say you cannot convey because there is a limitation over to us, and in the other the two brothers would take the same position because of his death without wife or child, and no condition could arise in which he could dispose of the property. We are therefore of opinion that this provision of the will must stand, and that full effect may be given to all parts-of the will by adopting the construction that George T. Tyson took a defeasible fee, with a general power of disposition, and it follows that the defendant acquired title under the conveyance. Affirmed.