WACHOVIA BANK AND TRUST COMPANY v. Bryant

128 S.E.2d 758 (1963)

258 N.C. 482

WACHOVIA BANK AND TRUST COMPANY, Trustee Under the Will of W. C. Beavans, v. W. R. BRYANT, Ancillary Administrator d.b.n. of J. Russell Beavans, Raymond T. Beavans, Walter Andrew Beavans, Elizabeth Beavans Sheppard, Eugene Beavans, W. Cary Beavans, Annette Beavans Hardison, John D. Beavans, Samuel C. Beavans and Walter Travis, Guardian ad litem for other heirs of W. C. Beavans in posse or in esse, and any other person claiming interest in the property or estate of W. C. Beavans, and W. B. Voliva, Assignee.

No. 599.

Supreme Court of North Carolina.

January 11, 1963.

*760 Roberson, Haworth & Reese, High Point, for plaintiff appellee.

Branch & Hux, Enfield, for Samuel C. Beavans, John D. Beavans, Mrs. Annette Beavans Hardison, W. Cary Beavans, Eugene Beavans, and Mrs. Elizabeth Beavans Sheppard, defendant appellants.

John A. Wilkinson, Washington, for W. B. Voliva, defendant appellee.

SHARP, Justice.

The basic rule of construction, and the refrain of every opinion which seeks to comprehend a testamentary plan, is that "[t]he intent of the testator is the polar star that must guide the courts in the interpretation of a will." Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777. Courts have had considerable difficulty in determining whether a testator meant his beneficiaries to take per capita or per stirpes but, out of judicial experience, certain rules have devolved to help solve this perplexity. Burton v. Cahill, 192 N.C. 505, 135 S.E. 332.

The general rule, which has been stated and restated innumerable times, is that where the devise or bequest is to a class, such as nephews and nieces, the devisees take share and share alike unless it clearly appears that the testator intended a different division. In re Battle, 227 N.C. 672, 44 S.E.2d 212. In an annotation in 16 *761 A.L.R., WillsPer Stirpes or Per Capita, we find the following statement on page 55: "The decisions warrant the generalization that under a bequest to `nephews and nieces,' as such, no implication arises from the nature of the relationship that they are to take by families." Subsequent annotations will be found at 78 A.L.R. 1403; 126 A.L.R. 174; 13 A.L.R.2d 1052.

However, appellant Voliva contends that in this case rules of punctuation should override general rules of testamentary construction. The bequest which we construe here is "to my nephews and nieces, the child or children of any deceased nephew and niece to receive the share the parent would have taken, the said distribution to be per stirpes and not per capita." Voliva argues that the last clause modifies nephews and nieces rather than the immediately preceding clause "the child or children of any deceased nephew and niece to receive the share the parent would have taken"; that the quoted clause, set off by commas, is a parenthetical expression which adds nothing to the provisions since the child or children of a deceased legatee would have taken his share without its inclusion. With this contention or construction we do not agree. Where it is necessary to effectuate the intention of a testator the court may disregard or supply punctuation, Coppedge v. Coppedge, supra, but we think the testamentary intent emerges here with the punctuation left as it is.

When a personal pronoun appears in a written passage the identity of the person to whom it refers must often be ascertained by referring back to its antecedent. The rules of English grammar proscribe the use of a pronoun if there can be any doubt about its antecedent. If there is doubt, and no antecedent is mentioned in the passage, it is obvious that evidence aliunde would have to be obtained to identify the person represented by the pronoun. In this case, if we were to hold that the nephews and nieces themselves take per stirpes, we would find ourselves looking for the antecedents (the stirpes) outside the will. Stirp or Stirps means the root or trunk, a person from whom a branch of a family is descended. The term "per stirpes" denotes the division of an estate by representation, a class taking the share to which the deceased whom they represent would have been entitled had he been living. Walsh v. Friedman, 219 N.C. 151, 13 S.E.2d 250.

We think the last clause in the provision under consideration modifies the one immediately preceding it and that the testator intended a per capita distribution among the nephews and nieces, the child or children of any deceased nephew or niece to take per stirpes. The testator's gift was to a class, nephews and nieces. He made them the primary legatees after the life estate of his wifenot because they represented a particular brother of his but because they were his nephews and nieces. Not once did he refer to them as children of his deceased brothers nor did he mention his brothers anywhere in the will. No suggestion that they were to take according to stock or root immediately followed the designation of the nephews and nieces as beneficiaries. That direction followed the designation of those who would take if a nephew or niece died before the date for distribution. Testator recognized the nephews and nieces as the stirpes and not their fathers. The names of the fathers, the testator's deceased brothers, and their children first appeared in paragraph five of the plaintiff's petition or instrument. Interpreting this will from its four corners the only person who could take by representation would be "the child or children of any deceased nephew or niece."

We think the intent of the testator is clear from the will itself but, if resort to canons of construction is required, one rule says that distribution should be per capita unless the entire will discloses a contrary intent. Burton v. Cahill, supra.

Punctuation and sentence structure are as individual as the writer himself. Formal *762 writers are likely to follow the tradition of "close" punctuation while the general preference of today is for "open" punctuation in which fewer commas are used. The draftsman of this will, writing a formal document, was undoubtedly following the tradition of "close" puctuation. It would have saved litigation had he written "to my nephews and nieces share and share alike (per capita), the child or children of any deceased nephew or niece to receive his share (per stirpes)"; nevertheless, we think that is what the testator intended.

In the instant case, as stated by Clark, C. J., in Leggett v. Simpson, 176 N.C. 3, 96 S.E. 638, and quoted by Stacy, C. J., in Tillman v. O'Briant, 220 N.C. 714, 18 S.E.2d 131: "There is nothing in the will which impairs the usual rule of construction that where a devise is to a class collectively, and not by name to various devisees in the class, all the members of the class take per capita and not per stirpes".

The appeal of the plaintiff is dismissed under the authority of Ferrell v. Basnight, 257 N.C. 643, 127 S.E.2d 219.

That portion of the judgment of the lower court directing that distribution among the nephews and nieces of W. C. Beavans shall be per stirpes is reversed. The case is remanded with directions to the Superior Court to enter an order requiring distribution among the nephews and nieces per capita.

Reversed.

RODMAN, Justice (dissenting)

As I read the will, testator intended to provide for a distribution of the trust at his wife's death among his nephews and nieces. By express language he directed "said distribution to be per stirpes and not per capita." The conclusion reached by the majority is, I think, contrary to the testator's intent. Hence my vote is to affirm.

HIGGINS, J., joins in this dissent.