Citizens Nat. Bank v. Phillips

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70 S.E.2d 509 (1952)

235 N.C. 494


No. 384.

Supreme Court of North Carolina.

April 30, 1952.

*511 E. Johnston Irvin, Concord, for plaintiff, appellee.

George S. Steele and Harvey C. Carroll, Rockingham, for defendants Gertrude Shaw Phillips, Blondie S. Walsh, Dewey S. Shaw, C. V. Shaw, Harry M. Shaw, Robert L. Shaw, Maude Poe, Charlie Barnes, Hester Barnes Brown, J. Monroe Warburton, Leo Warburton, and Elma Warburton McNair, appellants.

Pollock & Fullenwider, Southern Pines, for defendants, Sarah Belle Overton and Pauline Jessup, appellees.

Hartsell & Hartsell, Concord, for defendants Beverly Eckert Burks and Dale Eckert, appellees.

John Hugh Williams, Concord, for defendant Edna Taylor, appellant.

E. C. Brooks, Jr., Durham, for defendants Cecil Jones, Leon Jones, Talmadge Jones, Gladys Andrews Couch, and John Andrews, appellants.

ERVIN, Justice.

While the testatrix was among the living, she was highly proficient in the millinery art, but sadly deficient in legal draftsmanship. Despite her inadequacy in the last field of endeavor, she chose to write her last will in words of her own selection without regard for legal precedents. As an inevitable consequence, she produced a testamentary document which illustrates anew the accuracy of the epigram of Sir William Jones that "no will has a brother." 57 Am.Jur., Wills, ยง 1123. This action calls on the court to ascertain and carry into effect the intention of the testatrix as to the disposition of her property. In the very nature of things, the court must seek and discover such intention in the awkward phrases which the hand of the testatrix put on the paper probated as her last will. Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205.

This judicial task has been made less burdensome by the frank admission of the appellants that all of the provisions of the judgment are correct except those interpreting this language of the testratrix: "Then Edna Taylor is to come in for her equal part of my estate. The rest going to my first cousins after all debts are paid."

This portion of the will constitutes a residuary clause. It disposes of all of the estate of the testatrix that is left after debts are paid and specified gifts are satisfied. Shannon v. Reed, 355 Pa. 628, 50 A.2d 278. It declares that the residue of the estate is to go to particular persons, namely, Edna Taylor, who is identified, and the first cousins of the testatrix, who are capable of being identified. Adams v. Adams, 55 N.C. 215.

The words of a will are to be interpreted according to their ordinary meaning, *512 unless it clearly appears that they were used in some other sense. Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830; Williams v. Best, 195 N.C. 324, 142 S.E. 2; Goode v. Hearne, 180 N.C. 475, 105 S.E. 5.

A first cousin is the son or daughter of one's uncle or aunt. Culver v. Union & New Haven Trust Co., 120 Conn. 97, 179 A. 487, 99 A.L.R. 663; Weaver v. Liberty Trust Co., 170 Md. 212, 183 A. 544; Walker v. Chambers, 85 N.J.Eq. 376, 96 A. 359; In re Blum's Estate, 136 Misc. 441, 243 N.Y.S. 222. The child of one's first cousin is sometimes popularly called his second cousin, but is more properly his first cousin once removed. Culver v. Union & New Haven Trust Co., supra; State v. Thomas, 351 Mo. 804, 174 S.W.2d 337; Simonton v. Edmunds, 202 S.C. 397, 25 S.E.2d 284.

Inasmuch as there is nothing to indicate that the words were used in the will under scrutiny in a different sense, the provision giving a part of the residuary estate to the "first cousins" of the testatrix must be construed to include only those who are her first cousins in ordinary language, namely, the children of her uncles or aunts. Bishop v. Russell, 241 Mass. 29, 134 N.E. 233, 19 A.L.R. 1408. This conclusion is rightly incorporated in the judgment which declares that the sixteen first cousins of the testatrix named in paragraph 2 of the statement of facts take such part of the residuary estate to the exclusion of her five first cousins once removed designated in paragraph 3 of such statement.

This brings us to the final question whether the language of the will is clear enough to disclose the intention of the testatrix in regard to the distribution of the residue of her estate among the residuary legatees, i. e., Edna Taylor and the sixteen first cousins of the testatrix.

The will provides, in substance, that Edna Taylor is to receive "her equal part" of the residuary estate, and the sixteen first cousins of the testatrix are to receive "the rest" of the residuary estate. The word "part" signifies one of the portions into which anything is divided, or regarded as divided, whether actually separate or not. Commonwealth v. Dobson, 176 Va. 281, 11 S.E.2d 120. When the testatrix bequeathed her residuary estate, she regarded it as divided into these two portions: (1) the "part," which she gave to Edna Taylor; and (2) "the rest," which she allotted to her sixteen first cousins. Moreover, her words imply that the portion willed to Edna Taylor, i. e., "her equal part," is to be equal in value with the portion, i. e., "the rest," assigned to the sixteen first cousins.

These things being true, the language of the will discloses the intention of the testatrix that Edna Taylor is to receive one half of the residuary estate, and that the other half of the residuary estate is to be divided equally among the sixteen first cousins of the testatrix. The judgment of the superior court is hereby modified to conform to this conclusion. As thus modified, it is affirmed.

Modified and affirmed.

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