Brown v. Brown, 195 N.C. 315 (1928)

March 14, 1928 · Supreme Court of North Carolina

195 N.C. 315

I. M. BROWN, Individually, and as Executor of Josiah Brown, v. MINNIE BRITTON BROWN, N. H. BROWN and BRUCE BROWN.

(Filed 14 March, 1928.)

1. Wills — Rights and Liabilities of Devisees and Legatees — Advancements —Construction of Wills.

When a testator has died leaving an estate from which he specifically excludes two of his children as his heirs at law, stating that he had given each of them, as advancements, his portion of the inheritance, and that they were to receive nothing as such heirs: Held, a codicil to the will providing for the upkeep of a burial place on the “home place,” and’ also providing that should there be a residue of his personal property it should be equally divided among his heirs at law, refers to such heirs that were not excluded by the express terms of the will. In this case each of the excluded heirs had executed a recorded writing to the effect that he had received his full share of the inheritance, as stated in the will.

2. Wills — Construction—General Rules.

Where the testator has added codicils to his will the will will be construed with the codicils so as to effectuate the intent of the testator, as expressed by the entire writing.

Appeal by defendants, N. H. Brown and Bruce Brown, from Nunn, J., at November Term, 1927, of Bertie.

Affirmed.

The following judgment was rendered by the court below: “This cause coming on to be heard at this term before his Honor, R. A. Nunn, judge, and the same being heard, and by consent of the parties the same being heard before judge upon all matters raised in said pleadings; and it further appearing to the court, and being admitted in court by both plaintiff and defendants, that only questions of law are involved, and that there are no issues of fact to be passed upon by a jury, and the court being requested to find the facts and state the conclusions of law arising thereon, the court finds the following facts, to wit:

1. That Josiah Brown died testate on 25 June, 1926, and his last will and testament and two codicils attached thereto as a part of the said will were duly admitted to probate and recorded in the office of the clerk of the Superior Court of Bertie County, which will and codicils the court finds to be the last will and testament of the said Josiah Brown, and the same are made a part of this judgment.

2. That I. M. Brown, the executor named therein, has duly qualified as executor of the said estate, and is now acting as such.

3. That only the right to certain personal property is in controversy in this action, and the same was brought for the purpose of construing the said will and codicils and- determining the disposition of thirteen shares of bank stock and a note of six hundred dollars now in the hands of the executor and unadministered, also one $100 Liberty Bond, and $500 cash.

4. That Bruce Brown is the only heir at law of Tulie C. Brown, who was a son of Josiah Brown.

5. That Malinda Brown, wife of Josiah Brown, is dead, and that Minnie Britton Brown, N. H. Brown, Bruce Brown, and I. M. Brown, are the sole heirs at law and distributees of the said Josiah Brown under the law.

6. That Tulie C. Brown executed an agreement of record in Book 105, page 486, office of the register of deeds for Bertie County, releasing his interest in his father’s estate, which agreement is referred to in Item 8 of the said will.

7. Tbat N. H. Brown executed a similar agreement of record in Book 114, page 141, office of register of deeds for Bertie County, and wbicb is referred to in Item 9 of tbe said will.

And upon sucb facts appearing to tbe court, tbe court being of tbe opinion tbat Bruce Brown and N. H. Brown take nothing by virtue of tbe said will, as appears from items 8 and 9 thereof, and other parts of said will, and tbe court being also of tbe opinion tbat under Item 7.of tbe said will.tbe bank stock, Liberty Bond, $500 in money, and note of $600 were not intended by tbe said testator to pass absolutely under said item to Minnie Britton Brown, but tbat under tbe last clause of tbe second codicil, executed 24 February, 1923, tbe said Minnie Britton Brown and I. M. Brown share equally in said personal property:

It is therefore ordered, considered, adjudged and decreed that I. M. Brown, executor, distribute tbe said property equally to I. M. Brown and Minnie Britton Brown, after paying all debts and costs of administration.

It is further adjudged tbat I. M. Brown and Minnie Britton Brown are tbe owners of tbe said thirteen shares of bank stock, tbe said Liberty Bond, tbe note for $600 and tbe $500 cash, in equal proportions.

It is further adjudged tbat N. H. Brown and Bruce Brown own no right, title, interest or estate in and to tbe aforesaid property, and are not entitled to share in tbe said personal property, and tbat tbe plaintiff go hence without day as to all of their demands and recover bis costs, tbe same to be taxed by tbe clerk of this court.”

Tbe other necessary facts will be set forth in tbe opinion. Tbe only exception and assignment of error was to tbe judgment of tbe court below.

Craig & Pritchett for plaintiff.

Edgar T. Snipes and Winston, Matthews & Kenney for defendants.

ClaeKson, J.

Tbe court below by consent found tbe facts. Josiab Brown died 25 June, 1926, and left a will with two codicils. I. M. Brown, plaintiff, was left executor.' There was no eaveat to tbe will. His wife, Malinda Brown, died after tbe will was made and before tbe first codicil -was made. He left four children: (1) Minnie Britton Brown, (2) N. H. Brown, (3) I. M. Brown, (4) Tulie C. Brown, who is dead and who left one heir at law, Bruce Brown, one of tbe defendants.

In tbe findings of facts we have: “Tbat Tulie C. Brown executed an agreement of record in Book 105, page 486, office of tbe register of deeds for Bertie County, releasing bis interest in bis father’s estate, wbicb agreement is referred to in Item 8 of tbe said will; tbat N. H. Brown executed a similar agreement of record in Book 114, page 141, office of tbe register of deeds for Bertie County, and wbicb is referred to in Item 9 of tbe said will.”

Items 8 and 9 of tbe will are as follows:

“Item 8. My son, Tulie Cbesson, bas been amply provided for during my lifetime. I bave given bim tbe farm known as tbe Willis Barrett farm, besides repairing tbe dwelling-bouse on said farm and also giving bim a borse and a year’s provision, all of wbicb farm and other provisions made for bim I bave made as an advancement, and wbat I bave given bim is all tbe share that I wish bim to bave in my estate, and be is'not to share in my lands or other property wbicb may belong to my estate at my death. My son Tulie and I fully understand each other, as is evidenced by a contract wbicb we bave heretofore made and executed between eách other, wbicb is of record in Book 105, page 486, register of deeds office for Bertie County, North Carolina, and said contract is referred to and made a part of this my last will and testament.

“Item 9. My beloved son, Newton Henry, is not to share in nly estate at my death, neither real, personal or mixed, because be bas been amply provided for during my lifetime, as evidenced by an instrument of writing of record in Book 114, page 141, register of deeds office for Bertie County, N. C., wbicb record is referred to and made a part of my last will and testament. Tbe advancement wbicb I bave made to my son Newton Henry consists of tbe borne place on which be now lives, a borse and other personalty wbicb is in full settlement with bim of all right of claim in my estate.”

It will be noted that as to Tulie C. Brown, tbe will distinctly says: “What I have given him is all the share that I wish him to have in my estate, and he is not to share in my lands or other property which rrpay belong to my estate at my death.” As to N. H. Brown, tbe will distinctly says: “Is not to share in my estate at my death, neither real, personal or mixed, because hé has been amply provided for during my lifetime.”

Tbe contracts under seal between Josiab Brown and tbe two sons, Tulie 0. Brown and N. H. Brown, were both recorded and recitals in each are as follows: “Saving received all of my share of property ruhereof I (would) be entitled to in my father’s and mother’s estate, . feeling satisfied that I have received my full share of property whereof I am heir and that I shall not be entitled to no (any) more property in my father’s and mother’s estate during their life, nor shall I be entitled to- any more at their death.” Tbe contract with Tulie C. Brown was dated 1 January, 1901, and N. H. Brown, 15 April, 1902.

Tbe will of Josiab Brown was made 6 October, 1910, tbe first codicil II June, 1914, and tbe second 24 February, 1923.

Tbe second codicil bas reference witb particularity to a trust fund of $500 to be used for tbe upkeep of tbe family burying ground. In tbe will be mentions tbat it is bis will and desire tbat bis body be buried in tbe graveyard on my “borne place,” and one-balf acre to be reserved, “embracing tbe graveyard to be used as a burying ground for my descendants.” Tbe codicil says: “Wishing to preserve and keep sacred from tbe bands of vandalism tbe graveyard or cemetery where sleep my wife and children, and where I expect to make my last resting place, it is my will and desire tbat tbe said graveyard be kept and preserved witb sacred care.”

Tbe last clause of this second codicil is where defendants claim their rights arise, which is as follows: “If there should be any property remaining after the same has been divided according to my last will and testament and the two codicils, it is my will and desire that it be divided equally among my heirs at law under the canons of descent'.”

But, on tbe other band, plaintiffs claim tbe first part of tbe second codicil shows tbat defendants, N. II. Brown and Bruce Brown (only heir of Tulie 0. Brown) can have no interest, as tbe second codicil says: “I, Josiah Brown, of said county and State, malee this second codicil to my last will and testament, and dated 6 October, 1910, which I ratify and confirm, as also the codicil dated 11 June, 1911.”

Tbe court below in construing tbe will excluded N. H. Brown and Bruce Brown from any participation in certain of tbe personal property, and adjudged tbat Minnie Britton Brown, who does not appeal, and I. M. Brown, plaintiff, is entitled to tbe same. In this we think tbe court below correct.

From tbe contracts and will it clearly appears tbat tbe testator bad fully provided for N. H. Brown and Tulie C. Brown, father of Bruce Brown. In fact, N. H. Brown and Tulie 0. Brown, under their bands and seals signed a solemn agreement to tbat effect. This agreement was specifically referred to in tbe will and they in tbe will, by clear language, were excluded from any further share.

We do not think tbat tbe latter part of the'second codicil gave them anything additional. Tbe will and codicils are to 'be construed as a whole. Tbe clear language of tbe contracts and will was to tbe effect tbat N. H. Brown and Tulie 0. Brown, father of Bruce Brown, were to get nothing from tbe estate. Tbe first part of tbe second codicil ratifies and confirms tbe will, which gives them nothing, and tbe latter part of tbe second- codicil divides tbe remaining property “equally among my heirs at law,” we think, namely: I. M. Brown and Minnie Britton Brown, tbe two children who bad not been previously provided for and only provided for by tbe will. They were the heirs at law referred to. We think this construction is further borne out by tbe reason of tbe fact that in Item 12 of the will, before he appoints the executor, he gives certain life insurance “to my beloved daughter Minnie Britton (Brown) and Isaac McOony (Brown) to share and, share alike/’ Further in the contracts both N. H. Brown and Tulie C. Brown agree that they have received their full share of property "whereof I am heir.” We think they have no rights under the will. If anything more was intended to be given them, the testator could have so said. ¥e must construe the will and codicils together — the last codicil ratifies and confirms the will that gave N. II. Brown and Tulie C. Brown, father of Bruce Brown, nothing, and the will refers to the contracts in which they agree that they have received their full share.

It is said in Patterson v. McCormick, 181 N. C., at p. 313: “It must be construed, Taking it by its all four corners’ and according to the intent of the testator as we conceive it to be upon the face thereof and according to the circumstances attendant. We can derive but little help from adjudicated cases upon facts more or less different from those in this ease, for hardly ever can the facts and. the language be identical in any two cases. In the construction of a will, therefore, ‘Every tub must stand on its own bottom,’ except as to the meaning of words and phrases of a settled legal purport. The object is to arrive at, if possible, the intention and meaning of the testator as expressed in the language used by him.” Edmonson v. Leigh, 189 N. C., 196; Scales v. Barringer, 192 N. C., 94; Walker v. Trollinger, 192 N. C., 744.

For the reason given the judgment below is

Affirmed.