Opinion
(Filed 12 April, 1904.)
Wills — Legacies and Devises — Code, sec. 2141.
Where a testator devised his lands south of a certain line, "containing by estimation two hundred acres," and subsequently he purchased other lands south of the line, the reference to the number of acres did not prevent the latter lands being included in the devise.
ACTION by Thomas Brown and others against H. D. Hamilton and others, heard by Judge W. R. Allen, at December Term, 1903, of the Superior Court of RANDOLPH County. From a judgment for the plaintiffs, the defendants appealed.
Hammer Spence for plaintiff.
Oscar L. Sapp for defendants.
The testator devised to the defendant, his daughter, "all that tract or parcel of land which lies south of the line beginning at the northeast corner of K. L. Winningham's land and running thence east to the Wiley Cox line, containing, by estimation, 200 acres." In his will he divided and devised the rest of his land, marking it out by boundaries in the same way, to his other three children. The will was executed May 14, 1897, at which time the testator owned three contiguous tracts south of said line, aggregating about 250 acres. On September 9, 1898, the testator acquired 66 1/2 acres more touching in its whole length the said 250 acres and on the south thereof, and died September 25, 1900. This is a petition by the other children alleging that the testator died intestate as to said 66 1/2 acres and asking that it be sold for partition.
It is provided by The Code, section 2141, that a will shall (11) speak as of the death of the testator. It is also well settled that the presumption is against one's dying intestate as to any part of his estate. Of course these rules are subject to the stronger rule that the intent of the testator, clearly expressed, shall govern. But here the will shows an intent on its face to specifically dispose of all the testator's property. The testator knew that he had given by his will all his land south of a designated line to his daughter, and when he bought this land south of said line the following year he also knew that it fell within the devise to his daughter (the defendant), and if he had wished it to be taken out of such devise he would have added a codicil. On the contrary, though he lived more than two years after the purchase of said land, he made no change in his will. We attach no importance to the argument that the words used "all that tract south of said line," for when the 66 1/2 acres adjoining were bought it became a part of the land south of the line. The said tract at the date of the will consisted of three contiguous tracts, but were treated at one. Laws 1844, ch. 88, sec. 3, now The Code, sec. 2141, requires that the will shall be construed "to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intent shall appear by the will," and none here appears. A case very much in point is In re Champion, 45 N.C. 246. Hines v. Mercer, 125 N.C. 71, is not in point, for there the subsequently acquired land did not come within the terms of the specific devise, and, besides, there was a residuary clause. The reference to the number of acres (200 acres) cannot control the boundaries described in the deed. Lyon v. Lyon, 96 N.C. 439. There is no doubtful boundary to render the number of acres material to be considered, as in Cox v. Cox, 91 N.C. 256.
Error.
Cited: Harper v. Harper, 148 N.C. 457. (12)