Ellington v. Raleigh Savings Bank & Trust Co., 196 N.C. 755 (1929)

March 20, 1929 · Supreme Court of North Carolina

196 N.C. 755

FRANK K. ELLINGTON and ELIZABETH W. ELLINGTON, Guardian of BETTY W. ELLINGTON, v. THE RALEIGH SAVINGS BANK AND TRUST COMPANY, Executor and Trustee Under the Will of FRANK K. ELLINGTON, et al.

(Filed 20 March, 1929.)

Wills — Construction—General Rules of Construction — Intent of Testator.

In the absence of some controlling rule of law or public policy, a will and codicils thereto will be construed to give effect to the intent of the testator to be gathered from the several related instruments considered as an entire whole.

Appeal by defendant, Raleigh Savings Bank and Trust Company, from Harris, J., at October Term, 1928, of Wake.

Civil action to obtain a construction of the will of Frank K. Ellington.

From the judgment rendered, the Raleigh Savings Bank and Trust Company, executor and trustee, appeals, assigning errors.

Murray Allen for plaintiffs.

Thomas H. Calvert for defendant bank.

Stagy, C. J.

The guiding star in the interpretation of wills, to which all rules must bend, unless contrary to some rule of law or public policy, is the intent of the testator, and this is to be ascertained from the four corners of the will, considering for the purpose the will and any codicil or codicils as constituting but one instrument. 28 R. C. L., 211, et seq.

Viewing the record in the light of these principles, a majority of the Court is of opinion that the judgment rendered by his Honor below places a permissible construction on the will and codicil in question, and that no sufficient reason has been made to appear for overturning the judgment. Two members of the Court, however, hold a contrary opinion.

Much could be said and written on botb sides of the question, without any great benefit to the profession, perhaps, as the case simply calls for the application of settled principles to a peculiar use of language, not likely to appear again, and in this view of the matter we deem it sufficient to say that the judgment is

Affirmed.