Mewborn v. Mewborn

Annotate this Case

79 S.E.2d 398 (1954)

239 N.C. 284

MEWBORN et al. v. MEWBORN et al.

No. 317.

Supreme Court of North Carolina.

January 15, 1954.

*399 George W. Edwards, Snow Hills, for appellants.

Wallace & Wallace, Kinston, for appellees.

DENNY, Justice.

The intent of a testator is to be ascertained, if possible, from a consideration of his 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. Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; House v. House, 231 N.C. 218, 56 S.E.2d 695; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

In order to effectuate the intention of the testator, the court may disregard or supply punctuation, as well as transpose *400 words, phrases, or clauses. Even words, phrases, or clauses will be supplied in the construction of a will when the sense of the phrase or clause in question, as collected from the context, manifestly requires it. Coppedge v. Coppedge, supra; 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.

"It is very generally held that, where the gift is to several persons for life and at `their death' to `their' children, the fact that the phrase `their death' must be read `their respective deaths' may warrant the reading of the phrase `their children' as `their respective children.'" Bool v. Mix, 17 Wend., N.Y., 119, 31 Am.Dec. 285; Annotation 16 A.L.R. 123; 57 Am.Jur., Wills, section 1315, page 870; Horne v. Horne, 181 Va. 685, 26 S.E.2d 80; Cook v. Cook, 292 Ky. 53, 165 S.W.2d 971.

In the case of Horne v. Horne, supra, the Supreme Court of Virginia passed upon a provision in a deed involving the same question posed on this appeal. The deed dated 2 May, 1903, executed by R. R. Horne and wife, reserved a life estate in themselves in the lands involved and conveyed remainders therein for life to their sons, George R. Horne and C. R. Horne, with remainders after their deaths "to their lawful children". [181 Va. 685, 26 S.E.2d 85.] C. R. Horne died 15 April, 1930, leaving four children. George R. Horne died without issue on 19 August, 1941. The court held that "the words "their children," when employed in gifts of future estates after life estates given to two or more brothers or sisters with remainder "to their children," invariably means to "their respective children" * * *.'" Whereupon, the Court affirmed the ruling of the lower court to the effect that George R. Horne having died without issue, the portion of the estate conveyed to him for life reverted to the estate of the original grantor.

In the instant case, the testator not only contemplated an equal division of the devised tracts of land between his sons George Washington Mewborn and Paul Hodges Mewborn, but he directed that upon the death of his wife the lands should be so divided. Therefore, upon the death of the testator they became tenants in common for life in the devised lands, subject to the life estate of their mother, Mary M. Mewborn.

Ordinarily where the will or deed creates life tenancies in common, it is held to indicate an intent on the part of the testator or grantor that the remainders shall pass per stirpes and not per capita. Horne v. Horne, supra; 57 Am.Jur., Wills, section 1315, page 870; Annotations, 16 A.L. R. 17; 78 A.L.R. 1387; 126 A.L.R. 159; 13 A.L.R.2d 1031. Cf. Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102.

We think the provision in Item 4 of the will of W. D. Mewborn, directing an equal division of the lands devised therein between the two life takers, indicates a clear intent on the part of the testator that upon the death of his wife, the first taker for life, the sons should hold their shares in the devised lands in severalty. Therefore, upon their respective deaths their respective shares would go to their respective children, if each one of them had children. But, since George Washington Mewborn died without issue, the interest in the lands devised to him for life reverted to the estate of W. D. Mewborn. Moreover, this conclusion is consonant with the terms and provisions of the entire will. It contains nothing that indicates an intent to give to the children of Paul Hodges Mewborn any more than he undertook to provide for the children of his other heirs at law.

The judgment of the court below is