#### ROBERT HOLLAND et al. v. PROCTOR A. SMITH et al.

(Filed 3 May, 1944.)

1. Wills § 31—

The end to be sought in the interpretation of wills is to discover the intent of the testator, looting at the instrument from its four corners, and to give effect to such intent, unless at variance with some rule of law or contrary to public policy.

2. Same—

In ascertaining the meaning of particular parts, the intention of the testator is to be gathered from the whole. Apparent inconsistencies are to be reconciled, if reasonably accomplishable, so as to give effect to each in accordance with the general purpose. No words ought to be rejected if any meaning can possibly be put upon them.

3- Wills § 32—

A presumption exists that a testator intends to dispose of his entire estate and not to die intestate as to any part of his property.

*2564. Wills §§ 33a, 33f—

Where lands are devised to one generally, and to be at Ms disposal, this is a iee in the grantee; but where they are devised to one expressly for life, and afterwards to be at his disposal, only an estate for life passes, to the devisee, with a bare power to dispose of the fee.

5. AVills §§ 33a, 33b—

Where by will one takes a life estate in remainder, with limitation to her bodily heirs, if any, and, if none, then over, this excludes the rule in *Shelley’s case,*and the devise terminates upon the death of the devisee-without bodily heirs.

6. Wills § 33c—

A devise of lands to testator’s wife for her life to do with as she pleases and at her death to H. for life and then to H.’s bodily heirs, if any, and, if none, then to testator’s kin, where testator’s wife dies without disposing of the property, and H. dies without issue, the entire estate goes-by the will in fee to the heirs of the testator.

Baenhill, J., dissenting.

Seawell, J., concurring in dissenting opinion.

Appeal by plaintiffs from *Stevens, J.,*at February Term, 1944, of' Wake.

Civil action in ejectment.

After tbe pleadings bad been filed, tbe parties agreed upon tbe facts- and submitted tbe matter to tbe court for final determination and adjudication.

J. R. Blinson died in 1890 seized of a tract of land in Wake County,, tbe subject of tbe present controversy. He left a will. Tbe contest is among tbe beirs and next of kin of those named as devisees and the-defendants in possession under a deed from tbe beirs of tbe testator.

From a judgment upholding tbe claim of tbe defendants in possession,, tbe plaintiffs appeal, assigning errors.

*Wellons, Martin & Wellons and Boyall, Gosney <& Smith for plaintiffs,, appellants.*

*No counsel for interveners.*

*Albert Doub and Bailey, Holding, Lassiter & Wyatt for defendants, Proctor A. Smith and wife, appellees.*

Stacy, C. *J.*

On *the*bearing *the*case was made to depend on the operation of tbe following clause in tbe will of *J.*R. Blinson, late of Wake County, this State:

> “I give to my wife all tbe Property that I own her life time land and all to do as she pleases with and at her death tbe land is to go to Sallie *257A. Hocutt for ber life time and then to her bodily heirs if any and if none back to my Kin and My wife Kin all except the land. My wife can do as she pleases with it.”

Sarah L. Blinson, wife of the testator, died intestate in 1912 without having disposed of the land. The plaintiffs are her heirs and next of kin.

Sallie A. Hocutt, the first remainderman named in the will, died in 1941 without children or the issue of children. The interveners are her heirs and next of kin.

The defendants, Proctor A. Smith and wife, are in possession of the land under a deed from the heirs and next of kin of the testator.

The plaintiffs make two contentions: First, that the land was devised to Sarah L. Blinson, wife of the testator, in fee, and, secondly, that at least an undivided one-half interest in the land passed to the wife’s next of kin under the ulterior limitation.

The interveners claim as heirs and next of kin of Sallie A. Hocutt.

The trial court was of opinion that the “will failed to dispose of the real estate . . . beyond the date of the death of . . . Sallie A. Hocutt,” upon her dying without bodily heirs, which is found as a fact, and judgment was thereupon entered that “the said real estate reverted to the heirs at law of the said J. R. Blinson,” making good the deed from the heirs of the testator to the defendants.

It is apparent from a reading of the above testamentary clause that some of the materials of construction will be needed in this case.

The appropriate ones would seem to be:

1. The end to be sought in the interpretation of wills is to discover the intent of the testator, looking at the instrument from its four corners, and to give effect to such intent, unless at variance with some rule of law or contrary to public policy. *Williams v. Rand,*223 N. C., 734; *Heyer v. Bulluck,*210 N. C., 321, 186 S. E., 356.

2. In ascertaining the meaning of particular parts, the intention of the testator is to be gathered from the will as a whole. Apparent inconsistencies are to be reconciled, if reasonably accomplishable, so as to give effect to each in accordance with the general purpose of the will. 28 R. C. L., 217. “Every part of a will is to be considered in its construction, and no words ought to be rejected if any meaning can possibly be put upon them. Every string should give its sound.” *Edens v. Williams,*7 N. C., 31.

3. A presumption exists that a testator intends to dispose of his entire estate and not to die intestate as to any part of his property. *Gordon v. Ehringhaus,*190 N. C., 147, 129 S. E., 187; *Powell v. Wood,*149 N. C., 235, 62 S. E., 1071; 28 R. C. L., 227. Testacy presupposes no intestacy. *Reeves v. Reeves,*16 N. C., 386.

*258Applying these principles to the subject case, it seems clear the first contention of the plaintiffs that the devise to the testator’s wife is in fee cannot be sustained. *Parks v. Robinson,,*138 N. 0., 269, 50 S. E., 649. At most, it is a life estate with power of disposal. *Smith v. Hears,*218 N. C., 193, 10 S. E. (2d), 659.

Speaking *to*the question in *Ghewning v. Mason,*158 N. 0., 578, 74 S. E., 357, *Walker, J.,*delivering the opinion of the Court, concluded: “We may, therefore, take the rule to be settled that where lands are devised to one generally, and to be at his disposal, this is a fee in the devisee; but where they are devised to one expressly for life, and after-wards to be at his disposal, only an estate for life passes to the devisee, with a bare power to dispose of the fee.”

The second contention of the plaintiffs is more difficult. But first a word in respect of the intervening claim of the heirs and next of kin of Sallie A. Hocutt. She took a life estate in remainder with limitation to her bodily heirs, if any, and if none, then over. *Murdock v. Deal,*208 N. C., 754, 182 S. E., 466. This excludes the application of the rule in *Shelley’s case, Puckett v. Morgan,*158 N. C., 344, 74 S. E., 15, and as Sallie A. Hocutt died without bodily heirs the devise to her terminated at her death.

The question then arises, Who takes under the ulterior limitation?

It will be observed that the testator first gives to his wife her lifetime all of his property “land and all,” and at her death “the land” is to go to Sallie A. Hocutt her lifetime and finally upon the happening of an uncertain event it goes “back” to the testator’s kin and his wife’s kin “all except the land,” but his wife can do as she pleases with it. In other words, the testator wanted his wife to do as she pleased with all of his property, and he was desirous that his wife’s kin should contingently share in all “except the land.” This seems manifest from the repeated expression that the testator’s wife can do as she pleases with “it,” the land. *Trust Co. v. Lindsay,*210 N. C., 652, 188 S. E., 94. Then, too, the word “back” may connote to its former family ownership.

The foregoing harmonization of the different clauses avoids any intestacy and gives effect to all parts of the will in accordance with the general rules of construction. “The object of all interpretation is to arrive at the intent and purpose expressed in the writing, looking at the instrument from its foiir corners, and to effectuate this intent and purpose unless at variance with some rule of law or contrary to public policy.” *Kriies v. Plott,*222 N. C., 679, loe. cit. 683, 24 S. E. (2d), 531. On the other hand, to say the entire ulterior limitation has no application to the land would be to pose the question whether Sallie A. Hocutt takes a fee under the rule in *Shelley’s case, Glover v. Glover, ante,*152; *Bank v. Dortch,*186 N. 0., 510, 120 S. E., 60, as against a reversion to the *259beirs of tbe testator. *Baugham, v. Trust Co.,*181 N. C., 406, 107 S. E., 431.

Of course, much could be written in probing tbe mind of tbe testator, but it all comes at last to divining bis intent from tbe language of tbe will. In tbis case it may be “no more than guesswork,” *Clement v. Whisnant,*208 N. O., 167, 179 S. E., 430, as tbe clause in question is very cloudily expressed, nevertheless by applying tbe rules of construction tbe intent is thus legally ascertained; whereas, if ignored, tbe Court might become tbe creator, rather than tbe discoverer, of tbe intent. After all, wills are made by testators. *Thomas v. Houston,*181 N. O., 91, 106 S. E., 466. “If a will is sufficiently distinct and plain in its meaning as to enable tbe court to say that a particular person is to take, and that a particular thing passes, that is sufficient; and it must be construed upon its face without resorting to extraneous methods of explanation to give it point. Any other rule would place it practically within tbe power of interested persons to *make*a testator’s will, so as to meet tbe convenience and wishes of those who might claim to take under it”— *Merrimon, J.,*in *McDaniel v. King,*90 N. O., 597.

Since our conclusion has tbe same effect as tbe judgment below — tbe same persons taking tbe same estate whether by remainder or reversion, *Baugham v. Trust Co., supra*— tbe result will not be disturbed.

Affirmed.

BaRNhill, J.,

dissenting: In my opinion tbe testator expressed tbe intent that bis wife should take all bis property and that she might “do as she pleases” with all of it except tbe land. Tbe land was to go to her for life, and then to Sallie A. Hocutt for life, with remainder to her bodily beirs, if any, and if none then to bis kin and bis wife’s kin. If so, tbe will in effect reads:

> “I give to my wife all tbe property that I own her lifetime, land and all, to do as she pleases with all of it except tbe land. At her death tbe land is to go to Sallie A. Hocutt for her lifetime and then to her bodily beirs, if any, and if none back to my kin and my wife’s kin. As to all my estate except tbe land my wife can do as she pleases with it.”

Under tbe construction of tbe majority opinion tbe gift of tbe land after tbe first life estate is meaningless. “At her death tbe land is to go to Sallie A. Hocutt for her lifetime and then to'her bodily beirs if any and if none back to my kin and my wife’s kin all except tbe land.” Tbe testator was here dealing only with tbe land. Thus, if tbe majority conclusion is correct be gave and be took away in tbe same breath.

Accepted rules of construction require us, if possible, to so construe tbe language used as to give effect to each and ev.ery part thereof. But tbe majority thus negates one of tbe most important provisions of tbe will.

*260It is to be noted that there was no gift over of the personal property. This evidences an intent that his wife should have the right to “do as she pleases” with it. On the other hand, there was a specific limitation over of the land, carefully guarding against any lapse for failure of a taker. This to my mind confirms the view that the wife was not to “do as she pleases” with the land.

The testator and his wife had no children. There was an adopted daughter, Sallie A. Hocutt. No doubt, as is so often the case, he and his wife had accumulated what estafé he possessed. Hence, if the gift to the adopted daughter failed he wanted his kin and his wife’s kin to share equally in the land, the fruits of their joint efforts.

It follows that I am of the opinion that the plaintiffs are cotenants and that the judgment below should be reversed.

Sea well, J".,

concurring in dissent: In the case at bar, I think we may indulge the presumption against intestacy without feeling we have resorted to a merely mechanical device. In that event, I think we ought not to permit the expressions in the will' — jumbled as they are — to cancel out the testate intent if it can be reasonably discerned. As as alternative to that result, I believe the view taken by Mr. *Justice Barnhill*is the more reasonable interpretation of what the testator wanted to do with his property.

He may not have been as consistent as he was insistent, but I get the impression that he wanted the land to go to his own and his wife’s kin, and so vote.