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G. R. Barnacascel and Edna B. Barnacascel, his wife W. J. Barnacascel and Bertha L. Barnacascel, his wife Maggie M. Barnacascel, unmarried Margaret B. Gregory and William T. Gregory, her husband Jean B. Sears and John R. Sears, Jr., her husband Dorothy B. Baker and John L. Baker, Jr., her husband Edythe S. Dunstan and F. M. Dunstan, Jr., her husband Blanche S. White and E. R. White, her husband Ruth S. Whitehurst and John E. Whitehurst, her husband Inez E. Tadlock and L. B. Tadlock, Jr., her husband A. B. Evans and Ella H. Evans, his wife H. W. Evans and Ruby P. Evans, his wife Willie E. Chamblee and John S. Chamblee, her husband Carolyn E. Scales and A. H. Scales, her husband Jane Butterton Cobb and Vernon Cobb, her husband Ann P. Hughes and J. O. Hughes, her husband Sally P. Giordano, divorced Sophia W. Cobb and Hilary J. Cobb, her husband Martin H. White and Elizabeth B. White, his wife Walter T. White and Sue W. White, his wife and Sophia B. White, widow v. R. B. Spivey, Administrator of the Estate of Anna W. Phelps Paul Waters and Patricia C. Waters, his wife Edla B. Wicker and Travis A. Wicker, her husband Donnel G. Waters and Eunice S. Waters, his wife Cecil B. Waters and Neva F. Waters, his wife Cora L. Newbern and Kenneth W. Newbern, her husband Merelynn W. Baker and Mavin E. Baker, her husband Helen R. Waters, unmarried James E. Waters and Celia W. Waters, his wife Mary E. Waters, widow Eugene W. Waters and Priscilla G. Waters, his wife Connie W. Wright and Stanford W. Wright, her husband Nancy W. Dunaway and Paul W. Dunaway, her husband Gladys W. Harding, widow Ruth W. Bond, widow Sara W. Squire and Edward A. Squire, her husband Catherine W. Gough and Melvin N. Gough, her husband William N. Waters and Ruth S. Waters, his wife Frank B. Anthony, Jr., and Barbara J. Anthony, his wife Leon L. Baker and Lillian V. Baker, his wife H. Clyde Baker and Edna C. Baker, his wife Neta B. Threewicts, widow Bula B. Darden and Edwin A. Darden, Jr., her husband Lella S. Jenkins, widow Addie S. Swain, widow T. B. Sitterson, Jr. and Mary B. Sitterson, his wife Beacher W. Sitterson and Anne M. Sitterson, his wife Jack Sitterson and Doris N. Sitterson, his wife Kathryn S. Peele and Robert E. Peele, her husband Allen E. Sitterson and Sheila M. Sitterson, his wife Jean S. Lafata and Paul S. Lafata, her husband Helen S. Spivey, widow and Sadie S. Hoggard, widow
PARKER, Judge.
We agree with the parties and with the trial judge that by Item Sixth of the will of Asa Phelps his son, James, received only a life estate and that the devise of the remainder after his death “to his children in fee simple” did not invoke the Rule in Shelley’s case. Wright v. Vaden,
266 N.C. 299,
146 S.E. 2d 31; Griffin v. Springer,
244 N.C. 95,
92 S.E. 2d 682; Moore v. Baker,
224 N.C. 133,
29 S.E. 2d 452. Therefore, upon the death of James without having had a child or children, the devise of the remainder lapsed. By virtue of the statute in effect at the date of the testator’s death, being Sec. 2142 of the Code of 1883, unless a contrary intention shall appear by the will, a lapsed devise “shall be included in the residuary devise (if any) contained in such will.” The only question presented by this appeal is whether “the residuary devise” under which the lapsed devise passes in
[274] this case is Item Eighth or Item Tenth of the will. We agree with the trial court’s conclusion that it passed under Item Eighth.
Upon a superficial examination, there is an apparent inconsistency in the Asa Phelps will in that either Item Eighth or Item Tenth, looked at alone, might adequately serve as a residuary devise. Upon closer inspection, however, and examining the entire will, as we are required to do, the apparent inconsistency disappears. “The intent of the testator is his will, and such intent as gathered from its four corners must be given effect unless it is contrary to some rule of law or is in conflict with public policy.” Kale v. Forrest,
278 N.C. 1,
178 S.E. 2d 622. Further, “[i]t is a cardinal principle in the interpretation of wills that inconsistencies are to be reconciled, if reasonably accomplishable, so as to give effect to each in accordance with the general purpose of the will.” Bank v. Corl,
225 N.C. 96,
33 S.E. 2d 613. Any apparent inconsistency in the Asa Phelps will disappears when Item Tenth is construed as a disposition of the residue of the testator’s personal property and Item Eighth is construed as a disposition of the residue of the testator’s real property. The words employed by the testator in both Items, as well as their position in the will, lend support to this construction. In Item Eighth the testator expressly disposed of “all the lands owned by me at the time of my death (and not otherwise disposed of herein).” As pointed out by Walker, J., in Faison v. Middleton,
171 N.C. 170, 171,
88 S.E. 141, 142, “. . . no particular mode of expression is necessary to constitute a residuary clause. The words ‘rest,’ ‘residue,’ or ‘remainder’ are commonly used in the residuary clause, whose natural position is at the end of the disposing portion of the will; but all that is necessary is an adequate designation of what has not otherwise been disposed of, and the fact that a provision so operating is not called the residuary clause is immaterial.” In Item Eighth Asa Phelps did dispose of all lands “not otherwise disposed of.” This effectively disposed of all lands owned by the testator at the time of his death. In Item Tenth he disposed of “all the residue of my estate (if any) after taking out the devises and legacies herein-before mentioned. ...” Among the devises “hereinbefore mentioned” was the devise in Item Eighth of all lands owned by the testator at the time of his death not otherwise disposed of in the will. Further, Item Tenth directed that any residue passing under that Item should be “equally divided and
[275] paid over,” words more appropriate for disposition of personal property than for real property.
Respondents contend that in resolving any inconsistency between Items Eighth and Tenth the latter provisions must prevail in accordance with the general rule of construction of wills. To produce this effect, however, the two clauses must be wholly inconsistent and incapable of reconciliation. Andrews v. Graham,
255 N.C. 267,
120 S.E. 2d 734; Bank v. Corl, supra. As above noted, we agree with the trial court’s conclusion that the two Items of the Asa Phelps will involved in this case are capable of reconciliation and in our opinion the trial court’s judgment is in accord with a correct construction of the will. Accordingly, the judgment appealed from is
Affirmed.
Chief Judge Mallard and Judge Vaughn concur.
