Pilley v. . Sullivan

Adams, J. The contention of the parties jn’esents for determination tbe quantity of tbe estate embraced in items four and five of tbe last will and testament of Alfred S. Pilley. Tbe clause wbicb purports to ingraft upon the devise an unlimited restraint on alienation is not only repugnant to tbe estate devised, but is in contravention of public policy, and therefore void. Latimer v. Waddell, 119 N. C., 370; Wool v. Fleetwood, 136 N. C., 461; Christmas v. Winston, 152 N. C., 48; Lee v. Oates, 171 N. C., 717. Lord Coke is credited witb tbe observation tbat “wills and tbe construction of tbem do more perplex a man than any other learning; and to make a certain construction of tbem, tbis excedit jurisprudentum artem.” Nevertheless, tbe courts have established canons of construction, which' are designed as guides to the discovery of tbe testator’s intent, for tbe primary purpose in construing a will is to ascertain and give effect to tbe intention of tbe maker. 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. One of tbe arbitrary canons of construction sometimes requires that the word “or” be construed as meaning “and.” 28 R. C. L., 204 et seq.; Satterwaite v. Wilkinson, 173 N. C., 38; Ham v. Ham, 168 N. C., 487. In Dickenson v. Jordan, 5 N. C., 380, tbe testator devised certain land to bis grandson in fee^with tbe limitation tbat if be died before be arrived at lawful age or without leaving issue, tbe land should go to bis other grandson in fee. Judge Taylor said: “According to a literal construction of tbe will, tbe occurrence of either event would vest tbe estate in John Spier; but it is evident tbat such was not tbe testator’s intention, and tbis intention ought always to be effectuated when it does not contravene tbe rules of law. He could not have intended that tbe issue of William Spier Stewart should be deprived of tbe estate,' if their father died under age; for tbat would operate to take all from those who appear to have been tbe principal objects of bis bounty; yet such would be tbe effect of a literal interpretation of bis will. His intention seems to have been tbat tbe fee should remain absolute in William S. Stewart on tbe hapjoening of either event, either bis leaving issue or attaining to lawful age; or, in other words, tbat both contingencies, to wit, bis dying under age, and without leaving issue, should happen before tbe *497 estate vested in John Spier. To give effect to this intention, it is necessary to construe the disjunctive or copulatively; and there are various clear and direct authorities which place the power of the Court to do this beyond all doubt.” Ham v. Ham, supra, and cases cited. An application of this principle requires that the word “or” be read “and,” in the expression “without heirs or intestate.” The testator evidently did not intend that the limitation over should take effect in case Kathleen, although leaving heirs, should die intestate. It is equally manifest that the words “heirs” in the expression referred to should be construed as meaning children. Francks v. Whitakers, 116 N. C., 518; May v. Lewis, 132 N. C., 115. The clause “but the same shall descend to their next of kin” should be interpreted not so much as directing the course of descent as indicating the testator’s reason for the attempted restraint on alienation. The words “either or both,” in the clause “if either or both should die without heirs or intestate,” cannot be construed as applying to John T. Pilley and Mattie E. Pilley for the reason that they are only tenants for life, and upon the termination of their life estate, whether they die testate or intestate, the remainder will vest in the granddaughter, Kathleen Pilley. In this connection it will be noted that the limitation over is to “all my children’s heirs, share and share alike.” In point of legal interpretation the substance of the devise in items four and five is this: “I give and devise unto my son, John T. Pilley, and his wife, Mattie E. Pilley, an estate in all my lands and tenements, with such privileges as may be necessary for their convenience and comfort, during their natural lives, except the twenty-five acres devised to my daughter, Harriet Ohauncey; and after their death I give and devise said land to my granddaughter, Kathleen Pilley, and if she should die intestate and without children, then said land shall be divided among all my children’s heirs, share and share alike.” The testator gave to John Pilley and his wife a life estate with remainder in fee to Kathleen Pilley, defeasible in the event of her dying intestate and without children. The plaintiff, therefore, cannot convey an absolute fee to the defendant. For the reasons given the judgment is Reversed.