#### E. W. COPPEDGE, Administrator of J. W. COPPEDGE, Deceased, v. N. C. COPPEDGE and Wife, MARY B. COPPEDGE; E. W. COPPEDGE, Unmarried; ERNEST J. WHELESS and Wife, MOZELLE Mc. G. WHELESS, BLONNIE BUNN, Widow of P. R. BUNN, Deceased; LUCILLE W. HARRIS and Husband, G. H. HARRIS; RUBY W. DOBSON and Husband, CECIL R. DOBSON; VIVIAN W. TAYLOE and Husband, GORDON B. TAYLOE; BENJAMIN F. WHELESS, Unmarried; CHARLES MARION WHELESS, Unmarried; P. C. COPPEDGE and Wife, ALVERTA M. COPPEDGE; S. A. COPPEDGE and Wife, MAY P. COPPEDGE; DAISY C. WHEELER and Husband, J. H. WHEELER; BEULAH C. BUNN and Husband, NORFOLK BUNN; MARY ETTA C. GRIFFIN and Husband, S. D. GRIFFIN; MYRTLE C. BUNN and Husband, J. W. BUNN.

(Filed 26 September, 1951.)

1. Wills § 31—

Tbe intent of testator as gathered from the four corners of the instrument is the polar star in its interpretation, and will be given effect unless contrary to some rule of law or to public policy.

2. Same—

In order to effectuate testator’s intent, the courts may transpose or supply words, phrases or clauses when the context manifestly requires it, and may disregard or supply punctuation.

3. Same—

In construing a will every word or clause will be given effect if possible, and apparent repugnancies reconciled, and irreconcilable repugnancies resolved by giving effect to the general prevailing purpose of testator.

4. Wills § 34c—

Testator left him surviving a brother, a half brother, children of a deceased sister, children of a deceased brother, and grandchildren of a deceased sister. Testator directed that the remainder of his estate “be divided among my legal heirs, . . . equally, share and share alike as provided by laws of North Carolina . . .” *Held:*The beneficiaries take *per capita*and not *per stirpes,*this result being necessary to give effect to the words “equally, share and share alike” and the phrase “as provided by laws of North Carolina” being given effect as ascertaining who are his legal heirs.

Valentine, J., took no part in the consideration or decision of this case.

Johnson, J., dissenting.

Appeal by defendants Ernest J. Wheless and wife, Mozelle Me. G. Wheless; Blonnie Bunn, widow of B. B. Bunn, deceased; Lucille W. Harris and husband, G. H. Harris; B.uby W. Dobson and husband, Cecil E. Dobson; Yivian W. Tayloe and husband, Gordon B. Tayloe; Benjamin F. Wheless, unmarried; Charles Marion Wheless, unmarried; and Myrtle *174C. Bunn and husband, J. W. Bunn, from *Harris, J.,*February Term, 1951, of Nash.

This is an action instituted pursuant to the provisions of the Uniform Declaratory Judgment Act, to determine the rights of the parties in and to the real and personal estate of J. W. Coppedge who died testate on 12 July, 1949.

The testator never married, but left surviving him the following collateral heirs, or next of kin: A brother, E. W. Coppedge; a half brother, N. C. Coppedge; Ernest J. Wheless, Blonnie Bunn, Lucille W. Harris, Ruby W. Dobson and Vivian W. Tayloe, children of a deceased sister, Mrs. Miley J. Wheless; and Benjamin F. Wheless and Charles Marion Wheless, children of B. J. Wheless, a deceased son of Mrs. Miley J. Wheless; and P. C. Coppedge, S. A. Coppedge, Daisy C. Wheeler, Beulah C. Bunn, Mary Etta C. Griffin, and Myrtle C. Bunn, children of a deceased brother, S. J. Coppedge.

The testator, in Item 1 of his will, bequeathed to his niece, Mrs. Myrtle Coppedge Bunn, the sum of $1,000, and disposed of the residue of his estate in Item 3 of his will which reads as follows:

“3 : The remainder of my estate is to be divided among my legal heirs, including said Myrtle Coppedge Bunn, equally, share and share alike as provided by laws of North Carolina, after the said $1,000 mentioned in paragraph 1 has been paid.”

The court below held that the residue of the estate was to be divided *per stirpes*and not *per capita.*The appellants hereinbefore named, appeal to the Supi-eme Court, and assign error.

*L. L. Davenport for E. W. Go.ppedge, plaintiff, appellee.*

*O. B. Moss and Hill Yarborough for defendants, appellants.*

*Ilimous T. Valentine and Oooley <& May for defendants, appellees.*

DeNNY, J.

The intent of the testator is the polar star that must guide the courts in the interpretation of a will. *Buffaloe v. Blalock,*232 N.C. 105, 59 S.E. 2d 625; *Elmore v. Austin,*232 N.C. 13, 59 S.E. 2d 205; *Cannon v. Cannon,*225 N.C. 611, 36 S.E. 2d 17; *Holland v. Smith,*224 N.C. 255, 29 S.E. 2d 888. This intent is to be gathered from a consideration of the 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. *House v. House,*231 N.C. 218, 56 S.E. 2d 695; *Williams v. Rand,*223 N.C. 734, 28 S.E. 2d 247; *Heyer v. Bulluck,*210 N.C. 321, 186 S.E. 356.

It is permissible, in order to effectuate or ascertain a testator’s intention, for the Court to transpose words, phrases, or clauses. *Williams v. Rand, supra; Heyer v. Bulluck, supra; Washburn v. Biggerstaff,*195 *175N.C. 624, 143 S.E. 210; *Gordon v. Ehringhaus,*190 N.C. 147, 129 S.E. 187; *Crouse v. Barham,*174 N.C. 460, 93 S.E. 979; *Baker v. Pender,*50 N.C. 351.

Likewise, to effectuate tbe intention of tbe testator, tbe Court may disregard, or supply, punctuation. *Williams v. Rand, supra; Carroll v. Herring,*180 N.C. 369, 104 S.E. 892; *Bunn v. Wells,*94 N.C. 67; *Stoddart v. Golden,*3 A.L.R. 1060, 178 Pac. 707. Even words, phrases, or clauses will be supplied in tbe construction of a will wben tbe sense of tbe phrases, or clauses, in question, as collected from tbe context, manifestly requires it. *Williams v. Rand, supra, Washburn v. Biggerstaff, supra; Gordon v. Ehringhaus, supra; Crouse v. Barham, supra; Howerton v. Henderson,*88 N.C. 597; *Dew v. Barnes,*54 N.C. 149; *Sessoms v. Sessoms,*22 N.C. 453.

Tbe only question involved in this appeal is whether the beneficiaries, under tbe residuary clause of tbe will of J. W. Coppedge, take *per capita*or *per stirpes.*

Our Court has experienced considerable difficulty in similar cases. In *Stowe v. Ward,*10 N.C. 604, tbe language construed was as follows: “It is my will, and I do allow that all tbe remaining part of my estate, both real and personal, be equally divided amongst tbe heirs of my brother, John Ford, tbe heirs of my sister Nanny Stowe, tbe heirs of my sister Sally Ward, deceased, and nephew, Levi Ward.” Tbe Court was requested to pass upon tbe manner in which tbe personal property was to be distributed. It held that tbe word “heirs” was used in tbe sense of “children” and as a designation of persons, and directed a distribution of tbe property *per capita.*Later, tbe parties requested tbe Court to construe tbe same language with respect to tbe disposition of tbe real property, tbe opinion being reported in 12 N.C. 67. There tbe Court held tbe beneficiaries under tbe will took *per stirpes*and not *per capita.*Wben tbe second opinion was banded down, tbe personal property bad been distributed *per capita,*whereupon another action was instituted by *Ward v. Stow, et als.,*17 N.C. 509, to compel a redistribution of tbe personal property *per stirpes.*The Court held that tbe first opinion construing tbe will, to tbe effect that tbe beneficiaries thereunder took *per capita,*was correct and overruled *Stow v. Ward,*12 N.C. 67.

In *Bryant, Admr., v. Scott,*21 N.C. 155, tbe residue of tbe estate was “to be equally divided” among Edith Bryant, Margaret Parker, Julia Yalentine, and tbe children of bis daughter Temperance, and tbe children of a deceased son James. Tbe Court held tbe division to be *per capita,*and said: “Tbe intention that tbe grandchildren should take *per stirpes*is conjectured from tbe reasonableness of it, as applied to tbe state of most families. But wben tbe gift is made under circumstances which exclude all reference to tbe statute of distribution, that conjecture must be given *176up; and when *to that*is added a direction for an equal division among all the donees, no court could feel safe in making an unequal division.”

In the instant case, the testator directs that the residue of bis estate be divided among bis “legal beirs . . . equally, share and share alike as provided by the laws of North Carolina.”

We must determine whether the testator intended that upon ascertaining who his “legal heirs” are, as provided by the laws of North Carolina, such heirs should take *per capita,*— that is, equally, share and share alike; or, whether he intended that his “legal heirs” should take the residue of his estate in the proportions provided by law in the same manner as they would take had he died intestate. In the latter case, his heirs would not “share and share alike,” neither would they share “equally.”

In construing a will, the entire instrument should be considered; clauses apparently repugnant should be reconciled and effect given where possible to every clause or phrase and to every word. “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. 27. *Williams v. Rand, supra; Lee v. Lee,*216 N.C. 349, 4 S.E. 2d 880; *Bell v. Thurston,*214 N.C. 231, 199 S.E. 93; *Roberts v. Saunders,*192 N.C. 191, 134 S.E. 451. But, where provisions are inconsistent, it is a general rule in the interpretation of wills, to recognize the general prevailing purpose of the testator and to subordinate the inconsistent provisions found in it. *Snow v. Boylston,*185 N.C. 321, 117 S.E. 14; *Tucker v. Moye,*115 N.C. 71, 20 S.E. 186; *Macon v. Macon,*75 N.C. 376; *King v. Lynch,*74 N.C. 364; *Lassiter v. Wood,*63 N.C. 360.

In 40 Cyc. 1464, the author says: “The word ‘heirs’ in a will, when applied to real estate, primarily means persons so related to one by blood that they would take the estate in case of intestacy; and when applied to personalty, primarily means next of kin or those persons who would take under the statute of distribution in case of intestacy, and this rule applies where the will directs realty to be sold and the proceeds paid to the heirs.” *Everett v. Griffin,*174 N.C. 106, 93 S.E. 474.

One of the leading cases on the question before us is *Freeman v. Knight,*37 N.C. 72, where the Court was called upon to interpret an item in Josiah Freeman’s will which read as follows: “It is also my will that Big Sam and Isaac should be sold and the proceeds equally divided between my legal heirs.” *Gaston, J.,*in speaking for the Court said: “Where personal property is given *simpliciter*to ‘heirs,’ the statute of distributions is to be the guide, not only for ascertaining who succeeds and who are the ‘heirs,’ but how they succeed or in what proportions do they respectively take. But as donees claim, not under the statute, but under the will, if the will directs the manner and the proportions in which *177they are to take, the directions of the will must be observed and guidance of tbe statute is to be followed no further than where the will refers to it — that is to say, for the ascertainment of the persons who answer the descriptions therein given. The division directed by the will must be obeyed.” *Hill v. Spruill,*39 N.C. 244.

, In the cases of *Rogers v. Brickhouse,*58 N.C. 301, and *Burgin v. Patton,*58 N.C. 425, the Court did not adhere to the decision in *Freeman v. Knight, supra.*However, the next time the question was presented to the Court for consideration, in *Hackney v. Griffin,*59 N.C. 381, *Chief Justice Pearson,*speaking for the Court, said: “It is settled that the effect of the word ‘equal’ is to require the distribution to be made *per capita; Freeman v. Knight,*37 N.C. 72, and, as stated in that case, whatever might be the thought of this distinction, were the matter now a new one, to disregard them at this day would be *quieta movere.”*And again in *Tuttle v. Puitt,*68 N.C. 543, the Court speaking through *Rod-man, J.,*said: “It is too firmly settled by authority to admit of a question, that where a testator directs his property, whether real or personal, to be equally divided among his heirs, the division must be *per capita*and *not per stirpes.” Everett v. Griffin, supra; Wooten v. Outland,*226 N.C. 245, 37 S.E. 2d 682.

The general rule in this jurisdiction is to the effect that where an equal division is directed among heirs, or a class of beneficiaries, even though such class of beneficiaries may be described as *heirs*of deceased persons, *heirs*or *children*of living persons, the beneficiaries take *per capita*and not *per stirpes. Stowe v. Ward, supra*(10 N.C. 604); *Byrant, Admr., v. Scott, supra; Freeman v. Knight, supra; Hill v. Spruill, supra; Hackney v. Griffin, supra; Tuttle v. Puitt, supra; Shull v. Johnson,*55 N.C. 202; *Hastings v. Earp,*62 N.C. 5; *Waller v. Forsythe,*62 N.C. 353; *Britton v. Miller,*63 N.C. 268; *Culp v. Lee,*109 N.C. 675, 14 S.E. 74; *Leggett v. Simpson,*176 N.C. 3, 96 S.E. 638; *Ex parte Brogden,*180 N.C. 157, 104 S.E. 177; *Burton v. Cahill,*192 N.C. 505, 135 S.E. 332; *Tillman v. O’Briant,*220 N.C. 714, 18 S.E. 2d 131.

The rule, however, will not control if the testator indicates the beneficiaries are to take by families or by classes as representatives of the deceased ancestor. *Wooten v. Outland, supra,*and cited eases.

In a bequest, or devise, as well as under the statute of distributions, or the canons of descent, where the beneficiaries take as representatives of an ancestor, they take *per stirpes. In re Poindexter,*221 N.C. 246, 20 S.E. 2d 49, 140 A.L.R. 1138. But, when they take directly under a bequest, or devise, as individuals and not in a representative capacity, and the testator provides that the division or distribution shall be in equal proportions, they take *per capita. Wooten v. Outland, supra.*

*178Tbe language used by tbe testator in bis will, when considered in tbe light of our decisions, leads us to tbe conclusion that be intended for tbe residue of bis estate to be equally divided among bis legal beirs, share and share alike, and that tbe reference to tbe laws of North Carolina was intended only for tbe purpose of ascertaining who are bis “legal beirs.”

This interpretation will give effect to every clause or phrase, and every word in tbe will. Or, to put it another way, every string will give its sound, *Edens v. Williams, supra,*and every note will be retained in tbe melody. To bold otherwise would require us to ignore tbe direction of tbe testator that tbe residue of bis estate is to be divided among bis “legal beirs, equally, share and share alike.” Tbe appellants are claiming under tbe will, and tbe division directed therein must be obeyed. *Freeman v. Knight, supra.*

Tbe argument of tbe appellees to tbe effect that to allow an equal distribution *per capita*will result in an unfair and unnatural distribution as between tbe brothers of tbe testator and other legatees, will not b'e permitted to disturb tbe express provisions in tbe will which point to a *per capita*distribution. *Johnston v. Knight,*117 N.C. 122, 23 S.E. 92; *Burton v. Cahill, supra.*

Tbe judgment of tbe court below is

Eeversed.

ValeNtine, J., took no part in tbe consideration or decision of this case.

Johnson, J.,

dissenting: It may be conceded that where tbe words “equally” or “share and share alike” are used to indicate an equal division among a class, they ordinarily import a division *per capita. Hobbs v. Craige,*23 N.C. 332; *Freeman v. Knight,*37 N.C. 72; *Hill v. Spruill,*39 N.C. 244; *Henderson v. Womack,*41 N.C. 437; *Hackney v. Griffin,*59 N.C. 381; *Tuttle v. Puitt,*68 N.C. 543; *Culp v. Lee,*109 N.C. 675, 14 S.E. 74; *Johnston v. Knight,*117 N.C. 122, 23 S.E. 92; *Burton v. Cahill,*192 N.C. 505, 135 S.E. 332. See also 57 Am. Jur., Wills, Sec. 1297; Annotations: 16 A.L.R. 15, p. 22; 78 A.L.R. 1385, p. 1389; and 126 A.L.R. 157, p. 161.

But as stated in 57 Am. Jur., Wills, Sec. 1297, “There is abundant authority, however, to tbe effect that such expressions do not necessarily require a *per capita*equality of division but apply just as readily and appropriately to a *per stirpes*equality. Thus, it has been held that tbe word ‘equally’ may be satisfied by an equality between a class and legatees named, and that tbe expression ‘each to share and share alike’ may be satisfied by a division between classes.”

Especially is this so when tbe context imports a *per stirpes*division (57 Am. Jur., Wills, Sec. 1297; Annotations: 16 A.L.R. 15, p. 25; 78 *179A.L.R. 1385, p. 1390; and 126 A.L.R. 157, pp. 162 and 163), as where there is a reference in the will to the statutes of descent or distribution, such as a direction that the division shall be “as provided by the laws •of the state,” and such reference appears from the context to relate not solely to the persons who are to take, but also, or instead, to the proportions in which they are to take. “In such circumstances the distribution will he *per stirpes*rather than *per capita*where,” as here; the succession is to heirs of different degrees of relationship to the decedent. 57 Am. Jur., Wills, Sec. 1299. See also Annotations 16 A.L.R. 15, p. 29; 126 A.L.R. 157, p. 165 ; 69 C.J. 287 *et seq.; Bivens v. Phifer,*47 N.C. 436.

And should there he doubt as to whether the limitation “as provided by the laws of the state,” or like expression, is referable to the mode of ascertaining who are to take, or to the proportions in which the beneficiaries are to take, then the following observation of the Iowa Court would seem to be in point: “Where the question is in the balances of doubt, the doubt is to he solved in favor of a taking *per stirpes*rather than *per capita.*One reason for this preference is that such taking is in accord with the laws of descent and in accord with the natural instinct of testators.” *Claude v. Schutt,*211 Iowa 117, 233 N.W. 41. See also 57 Am. Jur., Wills, Sec. 1292, p. 855.

In the instant case the disputed item of the will is as follows:

> “The remainder of my estate is to be divided among my legal heirs, including said Myrtle Coppedge Bunn, equally, share and share alike as provided by laws of North Carolina, . . .”

The limitation “as provided by laws of North Carolina” is interpreted in the majority opinion as referring solely to the mode of ascertaining who are to take, *i.e.,*that this clause “was intended only for the purpose of ascertaining who are his ‘legal heirs.’ ” However, it would seem that upon a contextual interpretation of the disputed item this qualifying clause may be construed with more force of logic as referring to the manner and proportions in which the testator’s “heirs” are to take under the will. Here, it is observed that the first direction of the testator is that the remainder of his estate be divided among “my legal heirs.” He does not say “heirs.” He qualifies it by saying “legal heirs.” This qualification made it perfectly clear who were to take under the will. The testator was a bachelor. His only heirs and next of kin were two living brothers and the children and grandchildren of a deceased brother and a deceased sister. Thus, the job of determining who were the testator’s “heirs” was simple. He made it more so when he said “my legal heirs.” No further instruction was necessary in order to fix with certainty who were to take. There was no need to add the further instruction “as provided by laws of North Carolina.” And this he did not do. To give the will such an interpretation requires that the clause “as provided by *180laws of North Carolina” be taken out of context and transposed to another part of the sentence.

On the other hand, when the limitation “as provided by laws of North Carolina” is left where the testator put it, at the end of the sentence, it clearly appears to have been intended as a guide for fixing and determining the manner and proportions in which his “legal heirs” shall take under the will; So that, when the testator directed that the residue of his estate (and practically all of his estate falls in the residue) “be divided among my legal heirs, including said Myrtle Coppedge Bunn, equally, share and share alike,” he qualified it by saying “as provided by laws of North Carolina,” and that would seem to mean equally, share and share alike within *classes,*— per *stirpes,*as is the law of North Carolina. Such construction is rendered all the more certain by the fact that no comma breaks the cadence of the expression “share and share alike as provided by laws of North Carolina.”

The interpretation expressed in the majority opinion seems to take out of context and restrict and unduly minimize the force of this closing limitation of the testator, “as provided by laws of North Carolina.” This limitation is salutary. It would seem to be controlling. It makes the case distinguishable from the rule explained and applied in the cases cited in the majority opinion. In 69 C. J. 287, it is stated:

> “In ascertaining how the parties are to take, the intention of the testator, reached by an examination of the language used as applied to all the surrounding circumstances and conditions present in the testator’s mind at the time the will was written, is the determining factor. As a general rule the devisees or legatees will, if possible, be construed to take *per capita*rather than *per stirpes,*unless the will shows a contrary intention on the part of the testator, as where the beneficiaries are to take substitutionally. The presumption of *per capita*distribution is not a strong one, however, and is easily overborne; it will yield to a very faint glimpse of a different intention. In case of doubt, the statutes of descent and distribution should be followed as nearly as possible.”

There is compelling natural logic in the view that the testator intended to put the residue of his estate in the lap of the law for division under our statutes of descent and distribution when he directed that it “be divided among my legal heirs, including Myrtle Coppedge Bunn, equally, share and share alike as provided by laws of North Carolina.” Under the language of this will, it is hardly conceivable that he intended an equal *per capita*division among his fifteen heirs of such varying degrees of kinship, thus placing his two surviving brothers in no stronger position than his two grand nephews.

My vote is to sustain the *per stirpes*ruling of the court below.