In Re Stimpson's Will

103 S.E.2d 352 (1958)

248 N.C. 262

In the Matter of the WILL of Joseph E. STIMPSON, Deceased.

No. 465.

Supreme Court of North Carolina.

April 30, 1958.

Allen Langston, Raleigh, for respondent-appellant.

G. Earl Weaver and W. Gale Parker, Raleigh, in pro. per., for appellee-trustees.

RODMAN, Justice.

Appellant does not assign as error the failure of the court to make findings of fact with respect to her allegations which might form the basis for reformation or avoidance of the provisions of the family settlement. Her assignments of error are all predicated on the thesis that the agreement and consent judgment are valid but that the court has misinterpreted and misconstrued that agreement. A determination of appellant's rights rests upon the assignments of error which she has preserved.

The judgment dismissing caveators' appeal and establishing the rights of the parties was entered by consent. It thereby became a contract between the parties. Houghton v. Harris, 243 N.C. 92, 89 S.E.2d 860; Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323; Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747.

Courts do not presume to make contracts for parties. They only interpret when controversy arises as to the meaning *355 of the language chosen by the parties to express their agreement. The rules which courts have evolved for the interpretation of contracts are applicable to consent judgments. Rand v. Wilson County, 243 N.C. 43, 89 S.E.2d 779; Rand v. City of Wilson, 243 N.C. 46, 89 S.E.2d 781; Carpenter v. Carpenter, 213 N.C. 36, 195 S.E. 5.

A contract results when there is a meeting of the minds for the settlement or adjustment of asserted or disputed rights and obligations. The words chosen by the draftsman selected to reduce the agreement to writing are merely vehicles to make visible the mutual intention of the parties. Interpretation is, therefore, the ascertainment of that intent. To do so, the entire agreement must be examined with an understanding of the result to be accomplished and the situation of the parties at the moment the contract is made. De Bruhl v. State Highway Com., 245 N.C. 139, 95 S.E.2d 553; Bowles v. Bowles, 237 N.C. 462, 75 S.E.2d 413; Atlantic Coast Line R. Co. v. Norfolk Southern R., 236 N.C. 247, 72 S.E.2d 604; Hill v. Carolina Freight Carriers, 235 N.C. 705, 71 S.E.2d 133; McCorkle v. Beatty, 226 N.C. 338, 38 S.E.2d 102; McAden v. Craig, 222 N.C. 497, 24 S.E.2d 1; Town of Lumberton v. Hood, 204 N.C. 171, 167 S.E. 641.

Section 6 of the agreement quoted in the findings of Judge Bone is the portion of the contract expressly binding on the widow. It provides: "That Minnie Murray Stimpson, widow of the late Joseph E. Stimpson, has signified to the Court her willingness to accept her dower interest in the estate of Joseph E. Stimpson as contemplated by the proposed family agreement and settlement, and does hereby accept said settlement; relinquishing all further claim in and to the estate of said Joseph E. Stimpson."

The last clause of the quoted section is asserted to bar her right in the distribution of the personal estate. It may be conceded that this phrase, standing alone, is susceptible of the construction which appellees put on it; but when the entire contract is read with an appreciation of the rights and relationship of the respective parties to the action, such an interpretation would, in our opinion, do violence to the real intent of the parties.

We point to some of the factors which lead us to that conclusion. First, we must bear in mind that the prime object of the contract was to settle a lawsuit which could not in any way impair the rights of the widow. True, she was, by the service of the citation, a party, but a mere nominal party. Her answer had disclaimed any interest in the litigation. Her rights accrued when she dissented from the will, which was prior to the filing of the caveat. Her rights fixed by statute could only be taken from her by her act. Judge Bone expressly finds that she has not withdrawn her dissent or waived her rights, unless she did so by her signature to the agreement.

As a basis for Judge Carr's findings to bind the parties by the consent judgment, the opening paragraph reads: "That all legatees, devisees and heirs at law of the late Joseph E. Stimpson, together with the Executrix and Trustee named in the will of said Joseph E. Stimpson, are before the Court and are parties to this proceeding, either as propounders or caveators of the will of said Joseph E. Stimpson." Appellant, the dissenting widow, did not fit either of these categories. The omission of her name or status was natural and apparently deliberate, because her consent was not material to a settlement of the pending litigation. As to that she was a mere observer.

The agreement recites that the real estate on which the dwelling was situate represented the greater portion of the total value of the estate, the personalty making "a small fraction of the total value of the estate"; that the widow had dissented and was not bound by the will; that the will as probated made two bequests of $10, devised the dwelling house to Mrs. Stimpson *356 during widowhood and the residue of the estate to a trustee for the benefit of testator's three minor children, and "that irrespective of the terms of said will relating to said testamentary trust for the benefit of said minor children, when the dower rights of the said widow are allotted and assigned to her, which rights must include the dwelling house and other outbuildings situated on the aforementioned land, the residue of said land and other items comprising the estate of said testator will be greatly diminished in value, and made impractical for farming purposes or other business operations for the purpose of providing income as contemplated by the terms of testator's will, thereby compelling the Trustee, as appointed by said will, to invade and sell or otherwise dispose of such residue, after allotment and assignment of dower, at a depressed value in order to effectuate the purpose of said trust as set forth in testator's will." Then follows the statement that the best interests of the minors will be served by a sale of the real estate and the allotment of the widow's dower in cash. Nowhere is there a suggestion that the widow will benefit by sale of the land and allotment of her dower in cash.

No fair interpretation of a contract can be made without taking recognition of the motives which ordinarily prompt people to surrender valuable rights. They do not normally do so unless they expect some benefit to accrue to them. Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459.

The contract further stipulated that Mrs. Dull, the executrix, should, as soon as practicable, file with the clerk of the Superior Court of Wake County a final account as executrix indicating the completion of the administration of the estate of Joseph E. Stimpson, and that she should immediately resign as trustee under the will. Successor trustees were named.

The executrix could not complete the administration of the estate without paying to the widow her share in the personal property after the debts and costs of administration had been paid. The record does not disclose what personal property came into the hands of executrix. Her final account, if one has been filed, is not included as a part of the record. We have no information as to the costs and expenses of administering the estate. On the oral argument it was indicated that the personalty might amount to a substantial sum. Appellant's "child's share" would of course be chargeable with debts of the estate and the costs and expenses of administering the estate but not including any cost incident to the probate and caveat proceedings. When the executrix filed her final account, it was her duty to then pay to the parties entitled thereto their respective shares in the surplus. No provision was made to exclude the widow upon an accounting by the executrix. That would have been a logical place for such a provision.

When we examine the entire agreement in the light of the purpose to be accomplished, with recognition of the position of the parties, we reach the conclusion that the agreement, so far as it related to Mrs. Stimpson, dealt only with the method of allotting her dower, and did not constitute a sale, transfer, or forfeiture of her right to participate in the distribution of the personal estate.

The agreement provides for the allotment of the widow's dower by payment of the cash value rather than by allotment of specific real estate.

At common law a widow had no right to the possession of the land of her husband until her dower was assigned. Williamson v. Cox, 3 N.C. 4; Webb v. Boyle, 63 N.C. 271; Fishel v. Browning, 145 N.C. 71, 58 S.E. 759; Taylor v. Meadows, 169 N.C. 124, 85 S.E. 1.

Courts of law therefore held that a widow was not entitled to damages or the rental value of the land assigned as dower prior to assignment. Sutton v. Burrows, 6 N.C. *357 79; Spencer v. Weston's Heirs, 18 N.C. 213; Vannoy v. Green, 206 N.C. 77, 173 S.E. 277. In equity when the property was rented, the widow was entitled to have allotted to her a proportionate part of the rents received. Campbell v. Murphy, 55 N.C. 357. The heir is not, however, chargeable as a trustee with a duty of renting for the benefit of the widow. He is chargeable only with the rents received while dealing with the property in good faith or the reasonable value of the premises occupied by him. In re Gorham, 177 N.C. 271, 98 S.E. 717; Gay v. J. Exum & Co.,234 N.C. 378, 67 S.E.2d 290; 17A Am.Jur. 429, 430.

The record in this case is barren of any evidence that the heirs have received any rents or that they occupied the real estate to the exclusion of the widow. There is no suggestion that there was any bad faith in delaying sale of the real estate from February 1957 until October 1957. In the absence of any evidence to show that the sale was delayed in order that rents might accrue and that the rents collected were retained by the heirs, the widow would not be entitled to charge the heirs with the payment of rent or to have interest computed on the value of her dower.

We think it a fair and necessary inference from the family settlement agreement providing for a sale of the real estate and the allotment of dower in cash that the widow is obligated to pay her proportionate part of the costs of subdividing and selling the property.

As we understand the record, the only items deducted from the gross sale price are the actual expenses incident to the sale. Since appellant is not entitled to rents or interest or damages and is only entitled to have dower allotted in the net proceeds of the sale, it follows that the method of computing her dower is the correct method and the amount tendered is the amount which she is entitled to receive for dower, but payment of that sum cannot defeat her right to participate in the distribution of the personalty, and if settlement has been made with the trustees by the executrix, she is entitled to call upon them to pay over to her her proportionate part of the personal estate.

Error and remanded.