Clark v. Atkins

Ashe, J. There is no error, in our opinion, in the construction given by His Honor upon the second item of the will, except as to the state and railroad bonds. The second item reads: Bank stock in Citizens national bank of Raleigh and in Merchants’ and Farmers’ national bank of Charlotte, with the remaining debt still due from the Kimberly estate in Buncombe county, “I leave to be equally divided between the children of my deceased daughter E. H. Atkins, receiving the interest only, until after each becoming of age.” The testatrix owned at the time of her death one thousand dollars, to her credit in the Citizens national bank, and she owned bonds of the North Carolina railroad company of the face value of $2,500 and bonds of the state of North Carolina of the face value of $300, which bonds were in the Citizens bank, and were held as a special deposit by the testatrix. She also owned ten shares of the capital stock of the Merchants’ and Farmers’ national bank, but she did not own at the time of her death and never had owned any shares of the capital stock of the Citizens bank. The first question presented is, did the railroad bonds and the North Carolina state bonds pass to the children of E. H. Atkinns, [640] under the description of bank stock in Citizens national bank of Raleigh. In the construction of wills, the intention of the testator is always held to be the only guide in its interpretation'.' “It is a lex legum. a general rule, a universal maxim, that -in all cases, the design and intent of the framer, when it can be indisputably ascertained, shall -prevail; quod verba intentioni inservire debe.nL And the intention may be collected either from the particular-provision or the general context.” Potter’s Dwarris on Statutes, 174, 175. To the same effect is Procter v. Pool, 4 Dev., 370, in which Chief-Justice RuffiN says: “No positive rule can be-laid down for ascert-aing the intention of the maker of a deed or other instrument, but his intention is to be collected from the-whole instrument taken together.” See also Alexander v. Summey, 66 N. C., 577; and Lassiter v. Wood, 63 N. C., 360. In looking to the general context of the will of Mrs. Swain it must be evident to every plain mind, unbiased by the technical rules of construction, that it washer intention to bequeath by the second clause of her will the state and railroad bonds which she had on deposit in the Citizens bank, and that calling them “bank stock” w-as the result of ignorance or inadvertence. She had no bank stock, but she manifestly intended to bequeath something. What was it? It was something she had in the bank. It was not the thousand dollars she had deposited there, for she expressly mentions and disposes of that in the tenth clause of her will. The bonds then are the only other things she had in the bank, and the inference is irresistible that they were the things, which she, by a misdescription, called “bank stock,” intended to bequeath. In viewing the will in all its parts, it is evident she did not intend to die intestate as to any portion of her estate, and that-she believed she had disposed of every part thereof. For in the tenth clause, she directed that, “ if there should be a residue of the estate not embraced in this will, but may be found in the hands of my friend, R. H. Battle, attorney, who has in part the [641] management of my business, it will add to the closing up of my earthly affah’s. * * * I have some funds in the -Citizens national bank, one thousand dollars; after my burial expenses and medical bills are paid, should there be a balance of funds remaining and everything settled, divide between my four grandchildren/’ This is the only legacy in the will directed to be divided between the four grandchildren, and it consisted of the balance of the residue of her estate, after the payment of burial expenses and medical bills; and she restricts the residue to the bonds or notes in the hands of R. H. Battle and the one thousand dollars deposited in the Citizens bank. It is evident, when she made the residuary bequest, that she thought she had disposed of the state and railroad bonds by the second clause of her will; and to hold that those bonds fall into the residue to be divided between her four grandchildren, would be doing violence to the intention of the testatrix. The case lies so close to the shadowy lines of distinction between general and specific legacies, and latent and patent ambiguities, that very little light is to be derived from the application of the technical rules of construction. But we find the following authorities which serve to sustain the construction wc have given: In Gallini v. Noble, 3 Mer. Chan. Rep., 690, where the testator bequeathed all his money in the Bank of England to Ins daughters, it appeared that he never had money in the bank, but was entitled to some 3 per cent, and 5 per cent, bank annuities, and it was held that the annuities passed. It was compared to the case of an incorrect description of the intended legatee, and to the case where leaseholds have been held to pass under the devise of lands, “there being no other property to answer the description.” Quennell v. Turner, 13 Beav., 240. In Door v. Gray, 1 Ves., 255, where a husband bequeathed to his wife seven hundred pounds East India stock, having none, but there were seven hundred pounds bank stock to which [642] bis wife was entitled as executrix, which he afterwards transferred in his own name, Lokd Hardwick held that the bank stock should go to the widow — the judge being of opinion that it was a case merely of error of description. In Penticost v. Ley, J. & W., 207, a testator bequeathed one thousand pounds Long annuities, “now standing in my name or in trust for me.” At the date of the will the testator had no Long annuities, but had 3 per cent, reduced annuities, and it was held that that sum passed by the bequest. These cases, like that of the bequest of the “ white horse ” under the description of a black horse, were evidently sustained upon the principle of the maxim falsa demonstratio non nocet. We do not think there was any error in the directions given by His Honor upon the point which constitutes the defendants’ second ground of exception.- It would be manifestly unjust, and could hot have been intended by the testatrix, that the legatee Lula Swain should bear any part of the expenses of providing servants for the other legatees, the Atkins children. As to the third exception, we are of opinion His Honor’s construction of the second item of the will, in the particular of that exception, was correct. The testatrix leaves the legacies passing by that item “ to be equally divided between the children of my deceased daughter E. H. Atkins, receiving the interest only, until after each becoming of age.” It is clearly a legacy to each of the children to be paid on his or her attaining the age of twenty-one years, receiving the interest in the meantime. Who is to pay the legacies when the legatees arrive at age, and the interest accruing in the interim ? Of course, the executors. The fund remains in their hand until such time as they can execute this clause of the will by paying over to each legatee his or her share of the legacy, as they respectively arrive at the age of twenty-one years. Our conclusion is, that the judgment of the superior court must be affirmed, except as to the directions of Plis Honor with regard to the disposition of the state and railroad bonds, and we [643] think in that there is error. Our opinion is that these bonds passed by the second clause of the will to the children of Eleanor H. Atkins, and that the judgment must be reformed in conformity to this opinion, and costs must be paid out of the residuary fund, and to that end this opinion must be certified to the superior court of Wake county. Judgment accordingly.