Brown v. Brown, 180 N.C. 433 (1920)

Nov. 24, 1920 · Supreme Court of North Carolina

180 N.C. 433

FRANCES CAMPBELL BROWN and LAURA MORRISON BROWN, by Their Next Friend, MRS. ELLEN C. BROWN, v. MORRISON BROWN, Administrator C. T. A. of LAURA M. BROWN and BEDFORD BROWN.

(Filed 24 November, 1920.)

1. Wills — Devise—Power of Sale — Words and Phrases — Synonymous Tei’ms.

Where the testator “advises” his executors to sell all of Ms houses to make an equal division among his children, excepting his home place, which he “wishes” a certain son “to own”: Held, by the use of the word “advise,” a discretionary power was given the executors to sell the houses, excepting the “home” place, which was to go to the son, under the terms employed, “wishes” Mm “to own,” the intent of the testator being to use these terms, “advise” as a discretionary power to sell, and “wishes” the son “to own” as synonymous with the word devise.

2. Wills — Interpretation—Intent—Equity—Election—Devise—Equal Distribution.

A devise of the testator’s “home” place to a son, expressing that there should be an equal division of all of his other lots among his children, and that the son so designated had been liberal in aiding him with money in “considerable” amounts: Seld, tbe son may elect to cancel tbe indebtedness and take tbe fee to tbe “borne” place under tbe will, it appearing tbat tbis construction would practically or more nearly carry out tbe testator’s intent to equally divide bis property among bis children.

Civil action, tried before Bryson, I., at October Term, 1920, of Mecklenburg.

The jury trial was waived and tbe matter submitted to tbe court. Tbe question presented arises upon a construction of tbe will of Laura M. Brown. From tbe judgment rendered tbe plaintiffs and tbe defendant Bedford J. Brown appealed to tbe Supreme Court.

E. B. Preston for plaintiffs.

Walter Clark, Jr., for defendants.

Bkown, J.

Tbe part of tbe will of tbe testatrix under discussion is as follows:

“1. If Morrison and Edmunds are living in distant States, I appoint Alfred and Bedford executors of my estate.

“2. For equal division, I advise them to sell all tbe bouses I own (14 in number), except my borne, 807 E. Ave., wbicb I wisb Bedford to owp, as be has always sxient bis money liberally helping me to imjuove it, and I owe bim two considerable debts, one on tbe addition to tbe bouse, also tbe additional cost of tbe furnace, and tbe debt on tbe brick building on W. Fourth Street. Tbe Fourth Street property, also McDowell Street property, is rising in value so tbat I trust tbat an equal ■division can be made. Before Alfred’s marriage be advanced money to me to meet tbe interest on tbe debt of tbe old borne, and also helped me settle taxes, and advanced money to bis brothers in tbe Sem., also kept up Morrison’s life insurance (which was subsequently lost), and to compensate bim, I made bim a deed to one of tbe bouses on W. Fourth Street.”

His Honor adjudged upon tbe foregoing facts:

“Upon tbe foregoing facts, it is ordered, adjudged, and decreed tbat Bedford J. Brown is tbe sole owner in fee simple of tbat certain lot No. 807 E. Avenue, Charlotte, N. C., known and described in tbe will as bny borne’ by Mrs. Laura Morrison Brown, testatrix, and that said ‘borne place’ was devised to Bedford J. Brown in full settlement of bis share of tbe estate of Laura M. Brown, testatrix, and in full settlement of all indebtedness of Laura M. Brown, testatrix, to Bedford J. Brown, up to the time of the making of said will, to wit, 11 August, 1916, tbe said debts being as follows: A note for $825.75, less a credit of $84, wbicb note is dated 2 September, 1914, and a certain note for $219.46, dated 1 October, 1914;'and a debt of $401.46 on Fourth St. property, making a total of $1,362.67.”

Tbe will is inartificially drawn, but we think tbe intention of tbe testatrix is manifest tbat ber son Bedford should take tbe borne place. It is true tbe word “devise” is not used, but tbe words “I wisb Bedford to own”.are tantamount to saying, “I give and devise” to bim. Where tbe intention is manifest to confer an estate in property upon a devisee any word may be construed to have tbat effect which in common parlance would not appear to do so.

Thus tbe word “lend” is construed to mean “give” or “devise,” where tbe meaning is apparent. Jarman v. Day, 179 N. C., 318.

We tbink it is apparent tbat tbe testatrix intended to give ber son Bedford tbe home place in full discharge of ber indebtedness to bim, and be is put to bis election as to whether be will take the property or not on those terms. The total indebtedness to the defendant Bedford is found to be about $1,900. It would be impossible to make anywhere near an equal distribution of the property unless this construction was put upon tbe will.

According to tbe findings of fact, if Bedford should receive tbe home place valued at $10,000, and tbe payment of the indebtedness of the testatrix to bim, Bedford would receive some $12,000, while each of the other heirs would receive only some $5,000.

But if Bedford receives tbe home place, and tbe indebtedness of testatrix is canceled, be will receive approximately $8,000, and the each of tbe other heirs approximately $6,000.

His Honor adjudged tbat tbe will does not confer tbe power of sale upon the executors. In this we think the court erred. The language of the will is, “I appoint Alfred and Bedford executors of my estate. For equal division I advise them to sell all tbe bouses I own (14 in number), except my home,” etc.

We think it was the plain intention of the testatrix to confer upon ber executors the power to sell the property in order to make an equal division upon her children. It would be impossible for the executors to sell tbe property at all, there being no indebtedness, unless tbe words of the will are given some effect.

We are of opinion, however, tbat the word “advise” does not convey a positive direction to sell. It leaves discretionary with the executors as to whether they will sell and divide proceeds in accordance with tbe terms of tbe will or leave tbe property for actual partition among tbe devisees.

Affirmed.

Clare, C. J., did not sit on the bearing of this case.