Williamson v. Williamson

59 S.E.2d 214 (1950)

232 N.C. 54

WILLIAMSON et al. v. WILLIAMSON et al.

No. 459.

Supreme Court of North Carolina.

May 3, 1950.

*216 Malone & Malone, Louisburg, for plaintiff-appellant.

Edward F. Griffin, Louisburg, guardian ad litem for John P. Williamson, Jr. and William J. Williamson, minors, defendant-appellees.

SEAWELL, Justice.

This appeal poses three questions: Was the procurement of a life and accident policy on his own life, naming as his beneficiary William J. Williamson, the son born after the execution of the will, such a provision for the latter as is contemplated in G.S. § 31-45, barring him from participation in his father's property as heir and distributee?

What estate does Evelyn J. Williamson take under the will; in fee or for life?

What interests in the subject property do the parties respectively have?

1. The first question is answered adversely to appellant's contention in Sorrell v. Sorrell, 1927, 193 N.C. 439, 137 S.E. 306, on a factual situation on "all fours" with the instant case. The whole opinion is pointedly applicable and might be quoted; but preferably it should be read with its connection and sequences.

The appellant contends, however, that economic changes have taken place since the rendition of that opinion, especially with regard to the importance of life insurance, and its place in these changing economies in affording family security and stabilizing social conditions. We know that with the passage of time many subjects have graduated into categories theretofore denied them, in the process of "keeping the law alive," pari passu with progress. Animation of the "living law" must be found in its reasonable conformity to the mores of the people who are its ultimate sponsors,in the progress which breeds its necessity and accepts its control. Those required to interpret it judicially, when the initiative is theirs and the duty clear, should be glad to recognize and promote its currency. But there is no particular emphasis in the trends mentioned that would relieve Sorrell v. Sorrell from its obligation to stare decisis as establishing a rule of law relating to property rights; and we are persuaded that there are reasons behind the decision that are not affected *217 by the factors pointed out: Such as the inherent unsuitability of life insurance as a substitute for the provision omitted from the will and its indirectness as ex parentis provisione.

Neither the trial court nor this Court will be an arbiter of the adequacy of the posited provision; King v. Davis, 91 N.C 142; but in order to be ex parentis provisione it must be something of reasonable substance and value in praesenti rather than a possibility which must be continually fed to keep it alive, and may never get beyond the control of the insured. The want of directness in such a provision and of the characteristics mentioned would in any event prevent its ready acceptance in that role. It is not necessary to say that these considerations were in the minds of the Court at the time the decision was rendered; but we consider the opinion sound in principle as presently applied.

2. The appellant argues that since the testator first unequivocally devised Evelyn J. Williamson an estate in fee simple to his property and thus "divested himself of the fee, there is nothing further to grant or devise and no further control over the subject of his gift or devise," quoting from Fellowes v. Durfey, 163 N.C. 305, 79 S.E. 621; and Daniel v. Bass, 193 N.C. 294, 136 S.E. 733; citing also Barco v. Owens, 212 N.C. 30, 192 S.E. 862, and numerous cases therein cited.

On the other hand the appellees are equally sure that since the last testamentary expression was to that effect the plaintiff took only a life estate, citing Rees v. Williams, 164 N.C. 128, 80 S.E. 247, Id., 165 N.C. 201, 81 S.E. 186, and Taylor v. Brown, 165 N.C. 157, 81 S.E. 137.

We do not think either proposition is of universal application or particularly pertinent to the matter in hand. Modern legal thought rejects the concept that power goes out of the maker of the instrument step by step as the words are spoken and holds to the theory that the story is not told until the amen of the signature is uttered.

Space forbids us to go into an extended analysis of the cases cited by the appellant so as to show their factual differences from the case at bar. An example, however, may be found in the more recent case of Barco v. Owens, supra, which, carefully noted, eliminates itself from the list of authorities supporting appellant's contention.

But even if there may be found in some former cases expressions more general than required in the particular case, apparently reverting to less liberal rules of construction, this does not alter the rule that in finding the intent we must look to the whole instrument; from "its four corners." Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223; Hornaday v. Hornaday, 229 N.C. 164, 47 S.E.2d 857; Ward v. Black, 229 N.C. 221, 49 S.E.2d 413; Wheeler v. Wilder, 229 N.C. 379, 49 S.E.2d 737.

It is scarcely possible to assume that the will was written by an expert scrivener or a lawyer. The dispository sentence contains in its brief compass two repugnant designations of the estate conveyed: the first "in fee simple," the second for life. The first in terms as technical as can well be conceived, such as we would expect from a professional. The second as vernacular as any English-speaking layman might use. We are inclined to vote for the simpler expression as embracing the intent, with the more technical and perhaps less understood term as expressive of the beneficiary's uninterrupted enjoyment of the premises "as long as she lives." We, therefore, hold that the will conveyed to Evelyn J. Williamson a life estate only in her husband's property.

3. We only need add that the conclusions thus reached are determinative of the several interests of the parties, quantitatively, and the legal implications attached. The schedule adopted in the lower court correctly determines such interests, and we do not understand it to be challenged, assuming that the basic conclusions of law as above outlined prevail.

We have given due care to the rules of construction which counsel for the appellant have called to our attention,the presumption against partial intestacy, the rule favoring early vesting of the estate, and others; but persuasive as they may be, we have been unable to follow them to conclusion *218 in our present attempt to resolve into testamentary significance these apparently repugnant parts of the sentence without destroying the will.

It follows that the judgment must be affirmed. It is so ordered.

Affirmed.

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