Finke v. First-Citizens Bank & Trust Co.

Johnson, J. The trial court in construing the will concluded that the testator's dominant intent was to care for his surviving widow, Mollie Elizabeth Hardy, and that in order to carry out this intent the trust estate must be held intact by the Trustee during the life of the widow, notwithstanding the inconsistent provisions appearing in Item II, Sec. 4, of the will, to the effect that as and when a child arrives at the age of twenty-five, he or she shall then be entitled to a one-seventh part of the corpus of the trust estate. The ruling of the court below is supported in principle by numerous authoritative decisions of this Court. In Alexander v. Summey, 66 N.C. 577, 582, it is said: “The general and leading intention of the testator must prevail where it can be collected from the will itself; and particular rules of construction must yield something of their rigidity if necessary to effect this purpose.” In Holman v. Price, 84 N.C. 86, 88, Smith, C. J., speaking for the Court, said: “A leading principle in the interpretation of wills is to ascertain and recognize the general pervading purpose of the testator, and to subordinate thereto any inconsistent special provisions found in it.” In Hunt v. Jones, 173 N.C. 550, 92 S.E. 601, it was held, notwithstanding a conflict of language, that the will, when construed as a whole, disclosed a dominant intent on the part of the testator to divide his estate equally among his children. The Court said: “It is also a rule of construction that the dominant idea pervading the whole will must control, and that minor considerations must yield if in conflict with it; and it may well be said of the will before us, as was said in Lassiter v. Wood, 63 N.C. 363: ‘It is apparent that the leading purpose of the testator was to make all his children equal. The purpose of the testator, as gathered from the will, is always to be carried out by the court, and minor considerations, when they come in the way, must yield. Especially is this so when the purpose is in consonance with justice and natural affection.’ ” In Raines v. Osborne, 184 N.C. 599, 601, 114 S.E. 849, 850, it is said: “In the construction of a will, the predominant and controlling purpose of the testator must prevail when ascertained from the general provisions of the will over particular and apparently inconsistent expressions to which, unexplained, a technical force is given.” In Cannon v. Cannon, 225 N.C. 611, 619, 36 S.E. 2d 17, Stacy, C. J., speaking for the Court, said: “The central consideration is the general [377] purpose of the will. Holland v. Smith, 224 N.C. 255, 29 S.E. (2d) 888. The object of all construction is to arrive at the intent and purpose as expressed in the writing, looking at the instrument from its four corners, and to effectuate this intent and purpose without excessive regard for minor inaccuracies or inconsistencies. Krites v. Plott, supra (222 N.C. 679). These latter variations are to be reconciled, if reasonably accomplishable within the limits which the law prescribes, otherwise they must yield to the general purpose as expressed in the writing. Carroll v. Herring, 180 N.C., 369, 104 S.E., 892.” See also Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Hubbard v. Wiggins, 240 N.C. 197, 81 S.E. 2d 630; 37 Am. Jur., Wills, Sec. 1137; Coffield v. Peele, 246 N.C. 661, 100 S.E. 2d 45. Here it is noteworthy that at the time of the death of the testator all his children were twenty-five years of age or over. Yet he left his will unchanged, with various provisions indicating a dominant intent that his widow should be cared for during her life out of the trust estate created by the will. Item II, Sec. 1, provides that the Trustee out of the trust funds shall preserve and maintain the residence for the widow during her life. This item also provides that the widow may change her residence at the expense- of the trust if she so desires. Section 3 of the same item provides that the Trustee shall pay one-eighth of the net income of the trust to the widow in monthly installments for life. Also, by section 7 of this item the Trustee is given power to draw upon the corpus of the trust for the support of the widow if the income is not sufficient for that purpose. If the plaintiff is entitled to receive her share of the corpus during the life of her mother, then the other six children are entitled to the same treatment, and if all the children should demand their shares, the trust estate would be wiped out. Nothing would remain with which to maintain the residence for the widow or provide for her upkeep and support. In short, to parcel out the corpus of the trust estate under the construction urged by the plaintiff would destroy the trust and render inoperative sections 1, 3, and 7 of Item II. On the other hand, the trial court’s construction of the will does not destroy or make inapplicable any item of the will. The children will get their shares of the trust property under the provisions of Item II, Sec. 4. The time of enjoyment is merely delayed until the death of the widow. Manifestly, this construction comports with the dominant intent of the testator as expressed in the will. The judgment below is Affirmed. HiggiNS, J., dissents.