Filed 5 May, 1954.
1. Wills 32 — While ordinarily it will be presumed that a testator intended to disclose of property owned by him and did not intend to dispose of property over which he did not have power of testamentary disposition, such presumption of fact, like other presumptions of fact and technical rules of construction, as distinguished from rules of law, will not be permitted to overrule the evident intent of the testator, express or implied in the language of the instrument considered as a whole.
2. Wills 31, 39 — Where the language of a will is ambiguous or doubtful, evidence is competent to show the circumstances surrounding the execution of the will, including the condition, nature and extent of testatrix' property, and her relation to her family and to the beneficiaries named in the will, so as nearly as possible to get testatrix' viewpoint at the time the will was executed, and even if the language of the will is not ambiguous or doubtful, the admission of such evidence may not be prejudicial.
3. Wills 31 — The intention of testatrix as gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent, is the will, and a phrase will not be given its literal meaning if contrary to the intent as gathered from the language of the instrument considered as a whole.
4. Wills 36 — Ordinarily, where a definite and certain devise or bequest is made and some part of the same property is disposed of in a later part of the will, the original devise or bequest is only reduced to the extent necessary to comply with the later provision in the will.
5. Wills 39 — In an action to construe a will, the extent and character of the estate should be established when material as an aid in ascertaining the intent of the maker of the will.
6. Wills 34e — Where the amount of property intended to be embraced in a bequest is ambiguous and doubtful under the language of the will, later directions in the instrument for the disposition of testatrix' property inconsistent with one of the possible interpretations of the prior bequest, even though such directions are ineffectual because of ambiguity or illegibility, are proper to be considered in ascertaining the amount of property testatrix intended to embrace within the prior bequest, since such later provisions throw light upon testatrix' intent in this regard.
7. Same — Where amount of government bonds included in bequest is ambiguous, the amount must be ascertained in accordance with intent as gathered from entire instrument. Testatrix directed that a named nephew "is to have the Bonds on Hundred Dollars." At her death testatrix possessed two sets of bonds, one in an unmarked envelope of the value of three hundred dollars payable to herself or the nephew, and the other in an envelope marked her personal account, in the amount of six thousand dollars, payable to herself alone. Testatrix left no children her surviving, but was survived by 46 nieces and nephews and grand-nieces and grand-nephews, two brothers and one sister, and made bequests to 45 of these relatives, specifically excluding four from any share for reasons stated, with substantial equality among the beneficiaries named. Later provisions of the will attempting to dispose of fifteen hundred dollars in bonds and to set up a trust fund for business schooling of certain children were ineffective for ambiguity or illegibility. Held: In accordance with the intent of testatrix as gathered from the language of the instrument construed in its entirety, the phrase in question was properly construed to direct the delivery of the three hundred dollars in bonds in their joint names to the nephew and to bequeath to him one hundred dollars in cash, rather than a bequest of the six thousand dollars in bonds and one hundred dollars to him, which would result in a grossly disproportionate gift to the nephew.
APPEAL by defendant J. Samuel Hubbard, from Hall, Special Judge, December Term, 1953, of WAKE.
Parker Sink for plaintiff, appellee.
Lassiter, Leager Walker and Ballard S. Gay for appellees John William Archer, et al.
A. L. Purrington, Jr., guardian ad litem.
J. C. B. Ehringhaus, Jr., for defendant, appellant.
BOBBITT, J., concurring.
ERVIN, J., dissenting.
BARNHILL, C.J., and WINBORNE, J., concur in dissent.
This action was brought pursuant to the provisions of the Uniform Declaratory Judgment Act (G.S. 1-253, et seq.), for the purpose of obtaining the advice and guidance of the court in the construction and interpretation of the last will and testament of Christian Gay Pate, and in the administration of her estate.
The facts essential to the disposition of this appeal are fully stated in the court's findings of fact, conclusions of law and the judgment included therein, which are as follows:
"This cause being duly calendared for hearing and coming on to be heard before the undersigned Judge presiding at the December 1953 Assigned Civil Term of Wake County Superior Court, and a jury trial having been waived and all parties having agreed in open Court that the Court should hear and decide all questions of fact and law in issue in this action, and, it appearing to the Court that all parties involved in this action have been properly served with summons either by personal service by publication, or by personal service outside of the State and are before the Court.
"And it further appearing that all minors and incompetents and all unknown parties are represented in this action by and through A. L Purrington, Jr., guardian ad litem for Frankie Sue Gay, Barbara Lee White, Barbara Ann Gay Clayton, Alma Christine Gay Kyte, William C. Gay, Jr., Elizabeth Blanche Gay, Dewy Gay Harrison, Ernest Wood Taylor, John Dewey Wiggins, Jr., James Hampton Wiggins, Stanley Paul Wiggins, Jesse Wayne Archer, Deborah Louise Archer, Peggy Ann Archer, James Batte Harris, Sandra Dianne Harris, Judith Dee Vick, Joyce Ann Vick, Ellen Lee Adams, Patricia Ann Neal, Jean Marie Shields, Linda Tart Shields, James Anderson Shields, Elizabeth Ann Shields, Elizabeth Stockwell, Shirley Stockwell, Howard Stockwell, Jr., and Barbara Jean Archer, and for all other persons, known or unknown, or in being or not in being, and not specifically named in this action, who have or may have or claim an interest in the estate of Christian Gay Pate, deceased, who are defendants in the above entitled action, and for all unknown spouses of defendants, known or unknown, and not specifically named in this action, who have or may have or claim an interest in the estate of Christian Gay Pate, deceased, and that said guardian ad litem has duly filed answer herein, and,
"The Court having heard the evidence and arguments of counsel on matters of fact and law at issue, hereby finds the following facts:
"1. That the true and accurate transcription of the Will of Christian Gay Pate, indecipherable words being indicated by dashes, is as follows: (Note: the lines of said will are numbered for convenience of reference)
1 I Christian Gay Pate, I am a right sound 2 mind, and this is my Will. If anything 3 should happin to me before I do it I want a 4 nice family marker put to the graves for I don't 5 like the one there. Lizzie B. Hubbard 6 Dorothy Gay White is act as administrators of my 7 state. I want them to have one thousand 8 Dollars a piece for their time, I want 9 Jim Wiggins and Louise to have my car 10 5 hundred dollars. Christine Gay my niece 11 to have a nuf money to pay for Business Course 12 if she will take one, my house is to 13 stay like it my sister family is to 14 live here for 2 year or more if they 15 need to pay the taxes and up keep, put 16 fifty dollars a month in bank for Dorothy Gay. 17 if they make that above the expenses. Lizzie is 18 keep one five hundred for Lillie Vick to 19 buy thing that she really need. Mary Archer is to 20 have. 2. hundred. in cash. Sam Hubbard 21 is to have the Bonds on Hundred Dollars 22 Nita H. Davis is to have 2. hundred 23 dollars, in cash. my great nieces fifty a 24 piece. Loris D. Allen is to have one 25 hundred. my church to have one Hundred 26 in cash. my Brothers don't need none so they 27 will get five Dollars each. the other 28 shall stay in trust to for a while if any one 29 of the — — — children fish high help them with 30 a Business course up to five Hundred 31 Dollars each. The piano is Dorothy Gays any 31 a that she lizzie 32 thing else she wants in my house. 33 Mr. John White can help them he 34 shall have six hundred dollars for his 35 help to pay on a car for them. if any 36 one tries to Break this they are not to have 37 nothing at all, for these are the things I 38 want done. they don't have to give Bond. 39 one hundred. fifty dollars more to the 40 Masonic eastern Star home to furnish a room in the 41 hospital. when my home is sold it shall 42 be divided between my nieces nephews my 43 great nieces and nephews. at 2 hundred a piece 44 my sister shall have 5 Hundred Dollars. 45 I don't want Bill Gay or Harvey Gay Jr. to 46 have any for they Drink throw it way, so 47 I doe want Almo Gay, Bill Wife to have 48 2 hundred Dollars to feed her children 49 with instead of him getting it she shall 50 use it for the children. Bill or Foris Clint Archer is 51 not to have anything for they Drink. I don't want them to 52 have any. Lizzie is to have my china if she wants 53 it. I want fifteen hundred dollars in saving Bonds 54 for flowers to the graves. 55 This is my Will. Feb. 12, 1949 Christian. Gay. Pate.
"2. That the persons named by testatrix in line 45 of her said will as Bill Gay and in line 50 of her said will as `Bill or Foris Clint Archer' were intended by testatrix to be those persons among her nephews bearing such names, i.e., William C. Gay, Sr., John William Archer, Sr., J. Forest Archer and Robert Clinton Archer, Sr.
"3. That in lines 31, 31a and 32 of testatrix's will the words `anything else . . . in my house' were intended by testatrix to include only furniture in testatrix's house.
"4. That a family marker and individual name plates have been purchased? paid for and erected on testatrix's lot in Montlawn Memorial Park, Wake County, North Carolina, at a cost of $636.83.
"5. That testatrix's automobile has been delivered to James A. Wiggins and Louise Wiggins.
"6. That the language in lines 23 and 24 of said will, ` my great nieces 50 a piece.,' was intended by testatrix to constitute a bequest of $50.00 to each of testatrix's great nieces living at her death.
"7. That the language appearing in lines 20 and 21 of testatrix's will, to wit: `Sam Hubbard is to have the Bonds on Hundred Dollars,' when considered with other provisions appearing in said will and with the fact that testatrix held at her death two sets of bonds (one set in an unmarked envelope and consisting of three $100.00 U.S. Bonds, Series D, payable to `Mrs. Christian G. Pate or Mr. J. Sam Hubbard,' and the other set in an envelope marked `Mrs. W. L. Pate, personal account,' and consisting of six $1,000 U.S. Bonds, Series D, payable to Mrs. Christian Gay Pate') is ambiguous and subject to interpretation and the Court hereby finds as a fact that said language appearing in lines 20 and 21 of the will, `Sam Hubbard is to have the Bonds on Hundred Dollars,' was intended to bequeath to Sam Hubbard the three $100 U.S. Bonds, Series D, payable to `Mrs. Christian G. Pate or Mr. J. Sam Hubbard,' and $100.00, and that Sam Hubbard is entitled to no other property under the language of said bequest; that this finding does not prejudice the rights of Sam Hubbard under any other part of said will.
"8. That Christian Gay Pate left no children or issue surviving her and the Court cannot determine from the pleadings and the evidence to what children the testatrix intended to refer in line 29 of her will, reading `of the — — — children fish high help them with.'
"NOW, THEREFORE, upon the foregoing findings of fact and upon the admissions of facts in the pleadings, the Court concludes as matters of law and orders, adjudges and decrees as follows:
"1. That the transcription of the will of Christian Gay Pate, as set forth in Exhibit B attached to the complaint and as set forth in Book of Wills S, page 72, Office of the Clerk of Superior Court of Wake County, be, and the same is hereby amended in accordance with findings of facts No. 1 above, and that the Clerk of the Superior Court of Wake County be, and he is hereby authorized and directed to amend the transcription of said will as the same appears in Book of Wills S, page 72, Office of the Clerk of the Superior Court of Wake County to conform with said findings of facts No. 1 above, and, as amended, said transcript is hereby ordered, adjudged and decreed to be a true and accurate transcription of the will of Christian Gay Pate, deceased.
"2. That under the provisions in lines 31, 31a and 32 of the will of Christian Gay Pate, testatrix bequeathed her piano to Dorothy Gay White Watkins and also bequeathed to Dorothy Gay White Watkins and to Elizabeth Birdsong Hubbard any pieces of furniture contained in testatrix's home at the time of her death which either Dorothy Gay White Watkins or Elizabeth Birdsong Hubbard might select and elect to take.
"3. That under the provisions of lines 41 through 52 of said will, the executrices of said will are given an implied power to sell, after two years from testatrix's death, the homeplace of testatrix at 7 East Lane Street in the City of Raleigh, North Carolina, in such manner and to such person or persons and at such prices as they might deem for the best interest of said estate, and to distribute the proceeds of said sale as follows: (a) $500.00 to testatrix's sister, Nell Gay White; (b) $200.00 to each of testatrix's nieces, nephews, great-nieces and great-nephews living at her death, excluding William a. Gay, Sr., Harvey H. Gay, Jr., John William Archer, Sr., Robert Clinton Archer, Sr., and J. Forest Archer; (c) $200.00 to Alma Norwood Gay, wife of William C. Gay, Sr., for the use of her children, Barbara Ann Gay Clayton, Alma Christine Gay Kyte, William C. Gay, Jr., and Elizabeth Blanche Gay; that the sale of said homeplace, as the same is set forth and admitted in all of the pleadings filed herein, be, and the same is hereby approved and confirmed and Lizzie B. Hubbard, Executrix of the Estate of Christian Gay Pate, deceased, is hereby authorized and empowered to make, execute and deliver deed therefor under her power of sale; that no person was given the right under said will, as a beneficiary, devisee or legatee, to use or occupy said homeplace after the 9th day of July, 1951; that the legacies provided in lines 41 through 52 of said will are demonstrative legacies, and as such are entitled, if the proceeds of sale of said homeplace shall be insufficient to satisfy in full all of such legacies, to have any deficiency supplied from the general assets of the estate to the extent necessary to pay all such legacies in full and the expenses of sale of said homeplace shall be paid from the general assets of the estate.
"4. That under the provisions of lines 10, 11 and 12 of said will, Christine Gay (Alma Christine Gay Kyte) is to have enough money to pay for a business course if she will take one; that in carrying out this provision the Executrix be, and she is hereby authorized and directed to set aside for the benefit of Alma Christine Gay Kyte in full and complete discharge of the legacy provided in lines 10, 11 and 12 of said will, the sum of $500.00 out of the general assets of the estate, which sum is hereby declared to be a general legacy, and to pay therefrom the actual expenses of tuition, books and supplies incurred by the said Alma Christine Gay Kyte in taking a business course from such bona fide school offering such business course as she may elect: PROVIDED, that the said Alma Christine Gay Kyte must elect to take such course and must begin such course on or before March 7, 1958, and must complete such course on or before March 7, 1959, in default of which such funds as shall not theretofore have been paid by the Executrix shall be included in the residue of said Estate and so distributed; and in the payment of any portion of such legacy, the Executrix is hereby authorized to pay said funds in the discretion of said Executrix.
"5. That the provisions of lines 27 through 31 of said will, ` the other shall stay in trust to for a while if any one of the (word indecipherable) children fish high help them with a business course up to five Hundred Dollars each,' are so vague, indefinite and ambiguous as to be incapable of administration under the law and therefore the same are hereby ordered, adjudged and decreed to be void.
"6. That the provisions in lines 53 and 54 of said will reading: `I want fifteen hundred dollars in savings Bonds for flowers to the graves,' are so vague, indefinite and ambiguous as to be incapable of administration under the law and therefore the same are hereby ordered, adjudged and decreed to be void.
"7. That testatrix's will contains no valid residuary clause, wherefore any funds or properties not otherwise disposed of, including any legacies or devises which may have lapsed or may have been found by this Court to be void, shall be distributed among the distributees and heirs at law of Christian Gay Pate under the laws of descent and distribution as upon an intestacy, without exclusion of any distributee or heir at law, and particularly without exclusion of testatrix's brothers referred to in lines 26 and 27 of the will and her nephews, referred to in lines 45 and 50 of the will.
"8. That in the payment of bequests and other benefits provided in testatrix's will it is ordered, adjudged and decreed that all properties specifically bequeathed shall be delivered to the respective legatees denominated in said will to receive said property; that the legatees of the proceeds of sale of the homeplace shall be paid in full from the proceeds of sale of the homeplace, any deficiency to be supplied from the general assets of the estate; that thereafter general legacies shall be paid to the extent of funds available from funds of the estate then remaining; any residue of funds thereafter remaining shall be distributed among the heirs at law and distributees of Christian Gay Pate in accordance with the general laws of descent and distribution as upon an intestacy; and if the funds or properties of the Estate shall be insufficient to pay the various legacies and benefits provided under the will then such legacies and benefits shall abate in the following order, with pro rata abatement within each class: (a) residuary benefits; (b) general legacies; (c) demonstrative legacies; (d) specific legacies.
"9. That the costs of this action, including a fee to A. L. Purrington, Jr., guardian ad litem as aforesaid, in the amount of $400.00, to be taxed by the Clerk, be and they are hereby taxed against the Estate of Christian Gay Pate to be paid by the Executrix of the Estate of Christian Gay Pate, deceased.
"10. That any orders herein directed, or authority herein given, to Lizzie B. Hubbard, Executrix, or to the Executrix of the Will of Christian Gay Pate, shall have equal binding effect and authority on any other person who may at any time succeed Lizzie B. Hubbard as Executrix or who may at any time serve as executor, executrix or administrator c.t.a of the Will and Estate of Christian Gay Pate.
"11. That the six $1,000.00 U.S. Bonds, Series D, payable to Mrs. Christian Gay Pate,' were not disposed of by said will and shall fall into the residue of the Estate; and that Sam Hubbard is entitled to the three $100.00 U.S. Bonds, Series D, payable to Mrs. Christian G. Pate or Mr. J. Sam Hubbard.'
"This 11th day of December, 1953.
"C. W. HALL
Judge Presiding, December, 1953, Assigned Civil Term, Wake County Superior Court."
From the foregoing findings of fact, conclusions of law and judgment, the defendant J. Samuel Hubbard appeals, assigning error.
The one question to be determined on this appeal is whether the testatrix intended to give J. Samuel Hubbard the three $100.00 U.S. Bonds, Series D, which were payable to her or J. Sam Hubbard, and $100.00; or did she intend to give him the six $1,000.00 U.S. Bonds, Series D, payable to herself, Mrs. Christian Gay Pate, and $100.00?
We are not inadvertent to the fact that if the testatrix in the instant case had died intestate, J. Samuel Hubbard would have been entitled to the three $100.00 U.S. Bonds, Series D, as a matter of law. Ervin v. Conn, 225 N.C. 267, 34 S.E.2d 402; Watkins v. Shaw, Comr. of Revenue, 234 N.C. 96, 65 S.E.2d 881. There is also a presumption recognized by the courts in construing wills that a testator intended only to dispose of property owned by him and did not intend to include in a devise or bequest any property over which he did not have the power of testamentary disposition. 57 Am. Jur., Wills, section 1163, page 760; Bank v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310. It is not unusual, however, for persons to misconceive the extent of their testamentary rights and to undertake to dispose of property over which they have no power of testamentary disposition. Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45; Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183.
We must remember, however, that in the interpretation of a will to ascertain the intent of the testator, neither presumptions nor technical rules of construction, as distinguished from rules of law applicable to the construction of wills, such as the rule in Shelley's case or the rule against perpetuities, will be permitted to overrule the evident intent of the testator, either expressly or by necessary implication, gathered from the language of the will as a whole. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177; Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651.
In 57 Am. Jur., Wills, section 1135, page 731, et seq., we find this statement: "The one rule of testamentary construction to which all others are servient and assistant, it has been said, is that the meaning intended by the testator is to be ascertained and given effect in so far as legally possible. The testatorial intention will control any arbitrary rule, however ancient may be its origin, . . ."
The court below being of the opinion that the provision in the will with respect to the disposition of the bonds is ambiguous, admitted testimony, over the objection of the appellant, to show the extent of the personal contacts of the testatrix with her relatives who were named as beneficiaries in her will.
The appellant assigns as error the admission of the evidence referred to above, which, in sum and substance, discloses that her sister, Nell Gay White, and her husband, John E. White lived in the home of the testatrix from the time of their marriage in 1931 until the death of Mrs. Pate; that Mrs. White is the sister referred to in line 13 of the will, who was to continue to live in the decedent's home for two years after Mrs. Pate's death; that Dorothy Gay White (now Dorothy Gay White Watkins), who was named as co-executrix of Mrs. Pate's will. is the daughter of Mr. and Mrs. John E. White and was born and reared in the Pate home. (She qualified as co-executrix of Mrs. Pate's will but later married and moved to Meridian, Miss., and was permitted by the court to resign.) That Mrs. Pate from time to time visited J. Samuel Hubbard, a nephew, Nita H. Davis (Juanita Hubbard Davis), a niece, Mrs. Lizzie Hubbard, a niece by marriage, and James A. Wiggins, a nephew. That J. Samuel Hubbard visited Mrs. Pate several times while the Whites lived in her home; so did James A. Wiggins; that Lizzie Hubbard visited her more often than anyone else, and that Lizzie Hubbard was the only relative that visited Mrs. Pate during the last two or three years of her life.
In our opinion, irrespective of whether the will of Mrs. Pate is ambiguous or doubtful in the respect contended by the appellees, this evidence was not prejudicial to the appellant. It simply tends to show that the personal contacts of Mrs. Pate with her relatives, the objects of her bounty, were limited largely to those with the Whites who lived in her home, J. Samuel Hubbard and his sister Nita H. David (Juanita Hubbard Davis) of Petersburg, Virginia, Mrs. Lizzie Hubbard of Emporia, Virginia, and James A. Wiggins of West Greene, Georgia.
In seeking to discover the intent of a testatrix, when the language used is ambiguous or of doubtful meaning, it is proper for the court to take into consideration the circumstances surrounding the execution of the Will, including the condition, nature, and extent of her property, her relationship to her family and to the beneficiaries named in the will, so as nearly as possible to get her viewpoint at the time the will was executed. 57 Am. Jur., Wills, section 1144. page 741, et seq.; Herring v. Williams, 153 N.C. 231, 69 S.E. 140, 138 Am. St. Rep., 659; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Haywood v. Rigsbee, supra; Anderson v. Bridgers, 209 N.C. 456, 184 S.E. 78; Heyer v. Bulluck, supra; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Trust Co. v. National Missions, 226 N.C. 546, 39 S.E.2d 621.
In Cannon v. Cannon, supra, the late Chief Justice Stacy said: "The intention of the testatrix is her will. This intention is to be gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent. In interpreting the different provisions of the will, the courts are not confined to the literal meaning of a single phrase. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention." Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613; Weathers v. Bell, 232 N.C. 561, 61 S.E.2d 600; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12; Trust Co. v. Waddell, supra; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279; Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578.
It is apparent that the testatrix was a person of very limited education, who undertook to write her own will. Generally speaking it would seem that she had in mind a rather comprehensive and elaborate plan for the disposition of her estate, but did not have sufficient experience and training in such matters to make her intent in respect to certain bequests either clear or effective. She had forty-six nieces and nephews and great-nieces and great-nephews, four of whom she excluded; two living brothers, and one sister; she made bequests to forty-five of these relatives. Except for those rendering service in connection with the administration of her estate, and Dorothy Gay White (now Watkins), who was reared in her home, all were treated substantially alike unless J. Samuel Hubbard is to take all of her bonds in the aggregate sum of $6,300.00, and $100.00, plus $200.00 along with the other nieces and nephews, great-nieces and great-nephews (except those expressly excluded), in the division of the proceeds from the sale of her home.
The testatrix had two sets of bonds in different envelopes, one containing $300.00 par value, and the other $6,000.00 par value. The $300.00 in bonds in the name of the testatrix and J. Sam Hubbard, and $100.00 in cash, would be the largest amount given to any of her relatives other than those connected with the administration of her estate, except the sum of $500.00 bequeathed to James A. Wiggins, who, according to the record, is a Methodist minister; $500.00 to her sister Nell Gay White, who lived in her home; and $500.00 to her niece, Lillie Vick, to enable her "to buy thing that she really need." Lillie Vick, according to the pleadings, has six children, while J. Samuel Hubbard has no children. Moreover, if this testatrix knew that she did not have the testamentary power to dispose of the $300.00 in bonds because they were made payable to her and J. Sam Hubbard, but intended to give him the $6,000.00 in bonds, it is rather strange and unusual that she would have added " on Hundred Dollars," to this very large and disproportionate bequest.
Furthermore, later in her will this statement appears, " I want fifteen hundred dollars in saving Bonds for flowers to the graves." Ordinarily where a definite and certain devise or bequest is made and some part of the same property is disposed of in a later part of the will, the original devise or bequest is only reduced to the extent necessary to comply with the later provision in the will. 57 Am. Jur., Wills, section 1128, page 721, et seq. But, since there is some uncertainty or doubt as to what bonds the testatrix intended to include in the bequest to J. Samuel Hubbard, the court has the right to consider the later bequest or reference to savings bonds, on the question as to whether she intended to include the $6,000.00 in bonds in her bequest to him.
It is unfortunate that the court was not given any information as to the extent of the testatrix's estate. It was entitled to such information. Often the knowledge of the extent or character of an estate is helpful in ascertaining the intent of the maker of the will. Herring v. Williams, supra; Ripley v. Armstrong, 159 N.C. 158, 74 S.E. 961; Adams v. Cowen, 177 U.S. 471, 44 L.Ed. 851; Blake v. Hawkins, 98 F.S. 315, 25 L.Ed. 139.
The testatrix after making her bequests, exclusive of those in connection with the disposition of the proceeds to be derived from the sale of her home, undertook to set up a trust consisting of the residue of her estate, for the purpose of giving certain children a business education at a cost not to exceed $500.00 for each of such children. We concur with the ruling of the court below to the effect that the attempt to establish this trust failed because of its indefiniteness or illegibility of the writing in connection therewith. Even so, it is worthy of note that at the time the testatrix executed her will she had no nieces or nephews under eighteen years of age but she did have twenty-two great-nieces and great-nephews seventeen years of age or under, none of whom, in all probability, had finished high school and who might have become eligible for benefits under such trust had the testatrix used sufficient legible language to make her intent effective. However, the mere fact that she failed in her attempt to establish this trust, and also failed to make effective provisions for the establishment of the flower fund, does not prevent the consideration of these attempts on the question of her intent.
In seeking to find and apply the intent of a testator, Stacy, C.J., said in Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659: "It is this quest for the variant minds of testators, with no two situated exactly alike and the necessity of interpreting language according to the circumstances of its use, that often results in close distinctions and renders the law of wills sui generis. Richardson v. Cheek, supra; McIver v. McKinney, 184 N.C. 393, 114 S.E. 399. Yet after saying this, we assiduously pursue the adjudicated cases for any gleam of light that may help us with the problem in hand. Worthy ideas expressed elsewhere and on other occasions, like nuggets of truth when or wherever found, know no barriers of time or place. It is only the foggy horizon that shuts them out." Surely the testatrix's attempt to set aside "fifteen hundred dollars in saving Bonds for flowers to the graves," is more than a mere gleam of light bearing on her intent obtained from other adjudicated cases. We think it clearly indicates that she did not intend to bequeath the $6,000.00 in bonds to J. Samuel Hubbard.
Notwithstanding all the facts and circumstances revealed by the record, the appellant seriously contends that the testatrix not only intended to bequeath to him all her bonds. totaling $6,300.00 and $100.00 in cash. plus $200.00 from the proceeds to be derived from the sale of her home, but that she did so in plain and unambiguous language. We do not concur in this view.
As the authorities cited herein point out, in construing a will the language used in a single sentence, clause, or phrase, will not be permitted to control as against the evident intent gathered from the entire instrument. A will is not to be construed per parcella, but in its entirety. 57 Am. Jur., Wills, section 1137, page 735, et seq.
In our opinion when the will of the testatrix is considered in its entirety, it does not reveal an intent to give to J. Samuel Hubbard approximately twelve times as much as she gave to any of the other objects of her bounty exclusive of those administering her estate, and from six to ten times as much as she gave to each one of them. We think the provisions of the will support the ruling of the court below to the effect that the testatrix intended to give to J. Samuel Hubbard the $300.00 in bonds which she kept in a separate envelope, and $100.00 in cash, plus the amount bequeathed to him from the proceeds to be derived from the sale of her home.
The judgment of the court below is