Supreme Court of North CarolinaSep 1, 1951
234 N.C. 173 (N.C. 1951)
234 N.C. 17366 S.E.2d 777

Filed 26 September, 1951.

1. Wills 31 — The intent of testator as gathered from the four corners of the instrument is the polar star in its interpretation, and will be given effect unless contrary to some rule of law or to public policy.

2. Same — In order to effectuate testator's intent, the courts may transpose or supply words, phrases or clauses when the context manifestly requires it, and may disregard or supply punctuation.

3. Same — In construing a will every word or clause will be given effect if possible, and apparent repugnancies reconciled, and irreconcilable repugnancies resolved by giving effect to the general prevailing purpose of testator.

4. Wills 34c — Testator left him surviving a brother, a half brother, children of a deceased sister, children of a deceased brother, and grandchildren of a deceased sister. Testator directed that the remainder of his estate "be divided among my legal heirs, . . . equally, share and share alike as provided by laws of North Carolina . . ." Held: The beneficiaries take per capita and not per stirpes, this result being necessary to give effect to the words "equally, share and share alike" and the phrase "as provided by laws of North Carolina" being given effect as ascertaining who are his legal heirs.

APPEAL by defendants Ernest J. Wheless and wife, Mozelle Mc. G. Wheless; Blonnie Bunn, widow of P. R. Bunn, deceased; Lucille W. Harris and husband, G. H. Harris; Ruby W. Dobson and husband, Cecil R. Dobson; Vivian W. Tayloe and husband, Gordon B. Tayloe; Benjamin F. Wheless, unmarried; Charles Marion Wheless, unmarried; and Myrtle C. Bunn and husband, J. W. Bunn, from Harris, J., February Term, 1951, of NASH.

L. L. Davenport for E. W. Coppedge, plaintiff, appellee.

O. B. Moss and Hill Yarborough for defendants, appellants.

Itimous T. Valentine and Cooley, May for defendants, appellees.

VALENTINE, J., took no part in the consideration or decision of this case.

JOHNSON, J., dissenting.

This is an action instituted pursuant to the provisions of the Uniform Declaratory Judgment Act, to determine the rights of the parties in and to the real and personal estate of J. W. Coppedge who died testate on 12 July, 1949.

The testator never married, but left surviving him the following collateral heirs, or next of kin: A brother, E. W. Coppedge; a half brother, N.C. Coppedge; Ernest J. Wheless, Blonnie Bunn, Lucille W. Harris, Ruby W. Dobson and Vivian W. Tayloe, children of a deceased sister, Mrs. Miley J. Wheless; and Benjamin F. Wheless and Charles Marion Wheless, children of B. J. Wheless, a deceased son of Mrs. Miley J. Wheless; and P. C. Coppedge, S. A. Coppedge, Daisy C. Wheeler, Beulah C. Bunn, Mary Etta C. Griffin, and Myrtle C. Bunn, children of a deceased brother, S. J. Coppedge.

The testator, in Item 1 of his will, bequeathed to his niece, Mrs. Myrtle Coppedge Bunn, the sum of $1,000, and disposed of the residue of his estate in Item 3 of his will which reads as follows:

"3: The remainder of my estate is to be divided among my legal heirs, including said Myrtle Coppedge Bunn, equally, share and share alike as provided by laws of North Carolina, after the said $1,000 mentioned in paragraph 1 has been paid."

The court below held that the residue of the estate was to be divided per stirpes and not per capita. The appellants hereinbefore named, appeal to the Supreme Court, and assign error.

The intent of the testator is the polar star that must guide the courts in the interpretation of a will. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888. This intent is to be gathered from a consideration of the will from its four corners, and such intent should be given effect unless contrary to some rule of law or at variance with public policy. House v. House, 231 N.C. 218, 56 S.E.2d 695; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

It is permissible, in order to effectuate or ascertain a testator's intention, for the court to transpose words, phrases, or clauses. Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff, 195 N.C. 624, 143 S.E. 210; Gordon v. Ehringhaus, 190 N.C. 147, 129 S.E. 187; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Baker v. Pender, 50 N.C. 351.

Likewise, to effectuate the intention of the testator, the Court may disregard, or supply, punctuation. Williams v. Rand, supra; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Bunn v. Wells, 94 N.C. 67; Stoddart v. Golden, 3 A.L.R. 1060, 178 P. 707. Even words, phrases, or clauses will be supplied in the construction of a will when the sense of the phrases, or clauses, in question, as collected from the context, manifestly requires it. Williams v. Rand supra; Washburn v. Biggerstaff, supra; Gordon v. Ehringhaus, supra; Crouse v. Barham, supra; Howerton v. Henderson, 88 N.C. 597; Dew v. Barnes, 54 N.C. 149; Sessoms v. Sessoms, 22 N.C. 453.

The only question involved in this appeal is whether the beneficiaries, under the residuary clause of the will of J. W. Coppedge, take per capita or per stirpes.

Our Court has experienced considerable difficulty in similar cases. In Stowe v. Ward, 10 N.C. 604, the language construed was as follows: "It is my will, and I do allow that all the remaining part of my estate, both real and personal, be equally divided amongst the heirs of my brother, John Ford, the heirs of my sister Nanny Stowe, the heirs of my sister Sally Ward, deceased, and nephew, Levi Ward." The Court was requested to pass upon the manner in which the personal property was to be distributed. It held that the word "heirs" was used in the sense of "children" and as a designation of persons, and directed a distribution of the property per capita. Later, the parties requested the Court to construe the same language with respect to the disposition of the real property, the opinion being reported in 12 N.C. 67. There the Court held the beneficiaries under the will took per stirpes and not per capita. When the second opinion was handed down, the personal property had been distributed per capita, whereupon another action was instituted by Ward v. Stow, et als., 17 N.C. 509, to compel a redistribution of the personal property per stirpes. The Court held that the first opinion construing the will, to the effect that the beneficiaries thereunder took per capita, was correct and overruled Stow v. Ward, 12 N.C. 67.

In Bryant, Admr., v. Scott, 21 N.C. 155, the residue of the estate was "to be equally divided" among Edith Bryant, Margaret Parker, Julia Valentine, and the children of his daughter Temperance, and the children of a deceased son James. The Court held the division to be per capita, and said: "The intention that the grandchildren should take per stirpes is conjectured from the reasonableness of it, as applied to the state of most families. But when the gift is made under circumstances which exclude all reference to the statute of distribution, that conjecture must be given up; and when to that is added a direction for an equal division among all the donees, no court could feel safe in making an unequal division."

In the instant case, the testator directs that the residue of his estate be divided among his "legal heirs . . . equally, share and share alike as provided by the laws of North Carolina."

We must determine whether the testator intended that upon ascertaining who his "legal heirs" are, as provided by the laws of North Carolina such heirs should take per capita — that is, equally, share and share alike, or, whether he intended that his "legal heirs" should take the residue of his estate in the proportions provided by law in the same manner as they would take had he died intestate. In the latter case, his heirs would not "share and share alike," neither would they share "equally."

In construing a will, the entire instrument should be considered; clauses apparently repugnant should be reconciled and effect given where possible to every clause or phrase and to every word. "Every part of a will is to be considered in its construction, and no words ought to be rejected if any meaning can possibly be put upon them. Every string should give its sound," Edens v. Williams, 7 N.C. 27. Williams v. Rand, supra; Lee v. Lee, 216 N.C. 349, 4 S.E.2d 880; Bell v. Thurston, 214 N.C. 231, 199 S.E. 93; Roberts v. Saunders, 192 N.C. 191, 134 S.E. 451. But, where provisions are inconsistent, it is a general rule in the interpretation of wills, to recognize the general prevailing purpose of the testator and to subordinate the inconsistent provisions found in it. Snow v. Boylston, 185 N.C. 321, 117 S.E. 14; Tucker v. Moye, 115 N.C. 71, 20 S.E. 186; Macon v. Macon, 75 N.C. 376; King v. Lynch, 74 N.C. 364; Lassiter v. Wood, 63 N.C. 360.

In 40 Cyc. 1464, the author says: "The word `heirs' in a will, when applied to real estate, primarily means persons so related to one by blood that they would take the estate in case of intestacy; and when applied to personalty, primarily means next of kin or those persons who would take under the statute of distribution in case of intestacy, and this rule applies where the will directs realty to be sold and the proceeds paid to the heirs." Everett v. Griffin, 174 N.C. 106, 93 S.E. 474.

One of the leading cases on the question before us is Freeman v. Knight, 37 N.C. 72, where the Court was called upon to interpret an item in Josiah Freeman's will which read as follows: "It is also my will that Big Sam and Isaac should be sold and the proceeds equally divided between my legal heirs." Gaston, J., in speaking for the Court said: "Where personal property is given simpliciter to `heirs,' the statute of distributions is to be the guide, not only for ascertaining who succeeds and who are the `heirs,' but how they succeed or in what proportions do they respectively take. But as donees claim, not under the statute, but under the will, if the will directs the manner and the proportions in which they are to take, the directions of the will must be observed and guidance of the statute is to be followed no further than where the will refers to it — that is to say, for the ascertainment of the persons who answer the descriptions therein given. The division directed by the will must be obeyed." Hill v. Spruill, 39 N.C. 244.

In the cases of Rogers v. Brickhouse, 58 N.C. 301, and Burgin v. Patton, 58 N.C. 425, the Court did not adhere to the decision in Freeman v. Knight, supra. However, the next time the question was presented to the Court for consideration, in Hackney v. Griffin, 59 N.C. 381, Chief Justice Pearson, speaking for the Court, said: "It is settled that the effect of the word `equal' is to require the distribution to be made per capita; Freeman v. Knight, 37 N.C. 72, and, as stated in that case, whatever might be the thought of this distinction, were the matter now a new one, to disregard them at this day would be quieta movere." And again in Tuttle v. Puitt, 68 N.C. 543, the Court speaking through Rodman, J., said: "It is too firmly settled by authority to admit of a question, that where a testator directs his property, whether real or personal, to be equally divided among his heirs, the division must be per capita and not per stirpes." Everett v. Griffin, supra; Wooten v. Outland, 226 N.C. 245, 37 S.E.2d 682.

The general rule in this jurisdiction is to the effect that where an equal division is directed among heirs, or a class of beneficiaries, even though such class of beneficiaries may be described as heirs of deceased persons, heirs or children of living persons, the beneficiaries take per capita and not per stirpes. Stowe v. Ward, supra ( 10 N.C. 604); Bryant, Admr., v. Scott, supra; Freeman v. Knight, supra; Hill v. Spruill, supra; Hackney v. Griffin, supra; Tuttle v. Puitt, supra; Shull v. Johnson, 55 N.C. 202; Hastings v. Earp, 62 N.C. 5; Waller v. Forsythe, 62 N.C. 353; Britton v. Miller, 63 N.C. 268; Culp v. Lee, 109 N.C. 675, 14 S.E. 74; Leggett v. Simpson, 176 N.C. 3, 96 S.E. 638; Ex parte Brogden, 180 N.C. 157, 104 S.E. 177; Burton v. Cahill, 192 N.C. 505, 135 S.E. 332; Tillman v. O'Bryant, 220 N.C. 714, 18 S.E.2d 131.

The rule, however, will not control if the testator indicates the beneficiaries are to take by families or by classes as representatives of the deceased ancestor. Wooten v. Outland, supra, and cited cases.

In a bequest, or devise, as well as under the statute of distributions, or the canons of descent, where the beneficiaries take as representatives of an ancestor, they take per stirpes. In re Poindexter, 221 N.C. 246, 20 S.E.2d 49, 140 A.L.R. 1138. But, when they take directly under a bequest, or devise, as individuals and not in a representative capacity, and the testator provides that the division or distribution shall be in equal proportions, they take per capita. Wooten v. Outland, supra.

The language used by the testator in his will, when considered in the light of our decisions, leads us to the conclusion that he intended for the residue of his estate to be equally divided among his legal heirs, share and share alike, and that the reference to the laws of North Carolina was intended only for the purpose of ascertaining who are his "legal heirs."

This interpretation will give effect to every clause or phrase, and every word in the will. Or, to put it another way, every string will give its sound, Edens v. Williams, supra, and every note will be retained in the melody. To hold otherwise would require us to ignore the direction of the testator that the residue of his estate is to be divided among his "legal heirs, equally, share and share alike." The appellants are claiming under the will, and the division directed therein must be obeyed. Freeman v. Knight, supra.

The argument of the appellees to the effect that to allow an equal distribution per capita will result in an unfair and unnatural distribution as between the brothers of the testator and other legatees, will not be permitted to disturb the express provisions in the will which point to a per capita distribution. Johnston v. Knight, 117 N.C. 122, 23 S.E. 92; Burton v. Cahill, supra.

The judgment of the court below is


VALENTINE, J., took no part in the consideration or decision of this case.