Jones v. Gooch

VAUGHN, Judge. The principles that are supposed to guide the courts in the interpretation of wills are frequently and easily recited. Their application to particular cases presents a more difficult test. We have no reason to disagree with the trial judge’s conclusions as to what the testator intended, even though it appears that testator [245] was ambiguous in dealing with the contingency of having an unmarried daughter survive his widow. In effect, the judge concluded that for as long as the daughter did not marry, the daughter and the mother held the land as joint tenants, for life, with right of survivorship. The remaindermen cannot take, therefore, until the death (or, in this case, death or marriage) of the last of the joint life tenants. Burton v. Cahill, 192 N.C. 505, 135 S.E. 332 (1926). In reaching this conclusion, it seems that the judge properly tried to find the intent of the testator by considering the entire will and the circumstances as they existed at the time the will was executed. Cannon v. Cannon, 225 N.C. 611, 36 S.E. 2d 17 (1945). Testator’s will shows clearly several concerns. First it appears that he wished to deal as even handedly as possible with his family. Thus the residuary estate was to be paid over to his children in equal proportion, share and share alike. Secondly, he felt a strong sense of responsibility to the women of his family who would be alone after his death. He, therefore, provided especially for his widow and his two unmarried daughters, disturbing the general equality to this end. To his wife he gave some cash. To the three of them he left the family home and the 180 acre tract on which it stood, plus all of the personal property. He provided that, among the three, each would be equal in proportion, share and share alike, until the time of marriage at which time each daughter’s share would move to her mother. There is another concern throughout the will. Testator had eleven children and obviously recognized the problem of dividing the ownership of land among so many. He, therefore, directed that all of his estate, with the exception of the homeplace reserved for his wife and unmarried daughters, be sold and the cash distributed to his children. He further provided that all of the personal property and the home which was given to his wife and daughters remain intact until the event he considered likely to close the matter, the death of his wife. It seems reasonable to infer that the same considerations would have guided him, had he considered the question, to keep the homeplace unpartitioned until it was no longer needed by his unmarried daughter. At that time he ordered that the land be sold and cash again be distributed to his children. For the reasons stated, the judgment is affirmed. [246] Affirmed. Judges CLARK and ERWIN concur.