Den ex dem. Bolick v. Bolick, 23 N.C. 244, 1 Ired. 244 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 244, 1 Ired. 244

DEN ex dem. MARGARET BOLICK vs. JOHN BOLICK.

A testator devised to his wife as follows: “It is my will and desire that my Joying wife Margaret', shall retain and keep in her possession all that I may he possessed of at my death, (my debts and funeral expenses being first paid,) during her natural life.” Jt appeared i.n evidence that the testator-had lived for many years, and at the date of his yvill and. at the time of his death, on a certain plantation. The will was made in 1815. In 1811, upon the marriage of his son, the defendant in this case, he had permitted him to occupy a small portion of the plantation, with an understanding that his son was to remove as soon as he built a house on his own land. In 1813 the testator insisted the son pbould remove, which he refused to do until his house should be completed, which would be in 1814. The testator, and not the defendant, always gave in the land for taxation and paid the taxes. Held that under the words of this 'devise the land passed, and that fropa other clauses of the will and the parol testimony, it was clear the testator intended to devise the part occupied by his son, which occupation was in fact only the possession pf thg testator.

Held also that parol testimony is admissible to explain an obvious ambi-s guity of expression, as to the description of the subject of a dpyise, as for instance to shew thp situation or occupation of the land at any given time, or whether parcel or not parcel of the subject devised.

This was an action of Ejectment brought to January Term 1839 of Lincoln County Cfijirt, and after a trial in the County Court, carried by appeal to the Superior Court of Law of Lincoln, where at the Fall Tprm 1840, his honor Judge Pearson presiding, a verdict was rendered for the plaintiff, pnd judgment being given for him, the defendant appealed to the Supreme Court; The following is the case submitted to the Supreme Court:

This was an action of Ejectment. The defendant admitted himself to be in possession, and the only question made was on the proper construction of the will of one Sebastian Bolick, as to which the facts were presented as a case agreed, and a verdict was rendered for the plaintiff, subject to be sat aside and a nonsuit entered, should the Court be of opinion for the defendant upon the case agreed, which was as follows: Sebastian Bolick owned a tract of land in the county of Lincoln, upon which he resided many years, and upon which he was living at the time of his death. About the year 1811, upon the defendant’s marriage, Sebastian, defendant’s father, permitted him to take possession of a small house, situated at some distance from the house and cleared land of Sebastian, and to cultivate a field around the house, twenty acres, with an understanding that the defendant was to remove from the premises as soon as he built a house upon his own land. The defendant has lived in the house and cultivated the field ever since. About 1813 Sebastian insisted that defendant should leave the premises. The defendant refused to move off then as requested by his father to do, but promised that he would, as soon as he completed the house on his own land, which would be about 1814. Sebastian died, having duly made and published his last will, which was duly admitted to probate; the will among other clauses contains the following: “ I give all that I am in possession of at my death to my wife her life.” After the death of Sebastian, his wife, who is the lessor of the plaintiff, continued to live in the house and cultivate the part of the land owned by Sebastian in his lifetime, and the defendapt lived in the house and cultivated the field, which was in hjs occupation at the death of Sebastian, without- objection on the part of the lessor of the plaintiff, who was his' mother, until about one year before the commencement of the present action., when the lessor of the plaintiff ordered him to leave the premises, and he refused to do so, and denied her right to the land. Sebastian gave in for taxation and paid the tax for the whole tract during his lifetime. The defendant did not give in nor pay the tax for any part of the tract. The Court was of opinion, upon this statement of the facts, that the land in controversy, being the house and field, occupied by the defendant, passed to the lessor of the plaintiff, as well as the other part of the tract, under the description mentioned in the will, as being in possession of the testator- at the time of his death.

Copy of the last %oill and testament of Sebastian Bolick, referred to in this case.

In the name of God, amen: I Sebastian Bolick, of Lincoln County, in the State of North Carolina, being advanced in "years and of sound mind and memory, (thanks be unto God for the same,) and knowing that it is appointed for all men once t0 die¡ i (j0 make and ordain this my last will and testament in the manner and form following: That is first and principally, I do give and bequeath my soul into the hands of Almighty God, who gave it unto me, and my body I commit unto the earth from which it was taken, to be buried with decent Christian burial, at the discretion of my executors hereafter named; and as to that wordly property it has pleased God to bless me with in this life, I do give and dispose of the same as follows, which is, that it is my will and desire that my loving wife Margaret shall retain and keep in her possession all that I may be possessed of at my death, (my debts and funeral expenses being first paid,) during her natural life, my youngest daughter, Susannah, excepted, unto whom I give and bequeath one good feather-bed and bedding, &c., (going on to describe several small articles of persona! property,) to be paid and delivered to her when she comes of age or marries, which first happens. I give and bequeath to my two sons, Michael Bolick and John Bolick, the land I am possessed of at my decease, the rights for which are deposited in their mother’s hands, and are to be delivered to them after their mother’s death, or before, if she sees it proper and safe so to do. I give and bequeath unto my daughter Christina Barger, Margaret Bowman and Elizabeth Bowman, over and above what they have already received in my life time, their shares as shall be hereafter mentioned. And it’s my earnest will and desire that after my wife’s decease, that all (except the land and what is above bequeathed to my daughter Susannah,) the property by her left shall be sold and an equal divide thereof made amongst all my children, Michael Bolick, Christian Barger, Margaret Bowman, John Bolick, Elizabeth Bowman and Susannah Bolick; and I do hereby nominate, constitute and appoint my dearly and well beloved wife, Margaret Bolick, to be the sole executor of this my last will and testament, hereby revoking, disannuliing and making void all former wills, legacies or bequests by me made or done, ratifying and confirming this to be my last will and testament.

[This will was dated 13th February, 1815, signed by the testator, and duly executed in the presence of two subscrib■ing witnesses.]

No counsel for the plaintiff.

Hoke and Saunders for the defendant.

Daniel, Judge.

The words used by the testator are admitted to be sufficiently comprehensive to carry the land as well as the personal estate to his wife. 1 Brown’s Ch. Ca. 439, 2 Powell on Dev. 180. The dispute is, whether the land, which was occupied by the defendant, at the date of the will and at the death of the testator, passed by the words used by him. The defendant did not, at any time, pretend to hold the land adversely to his father, and, in truth, the defendant’s occupation was, in law, the father’s possession.— The father was authorized bylaw to dispose of it by his last will; and that he intended to devise it to his wife for life by the words which he used, we think is rendered still more apparent from the subsequent clauses in his will, relating to the dispositions of the remainders of his real and personal estate. The first is a devise to his two sons, John and Michael; and he gives to them as follows: “The land I am possessed of at my decease, the rights of which (title deeds) are deposited in their mother’s hands, and are to be delivered to them after their mother’s decease, or before, if she sees it proper and safe to do so.” This clause shews that the testator did not intend that either the defendant or his brother should have any of his land, until the death of his wife, without her leave. Then comes the clause disposing of the remainder of the personal estate as follows: “ It is my will and desire that after my wife’s decease, that all (except the land and a small specific legacy to his daughter Susannah) the property by her left shall be sold and equally divided among all my children.” It is apparent that the testator did not intend to die intestate as to any portion of his estate; which would necessarily be the case, during the life of the wife at least, as to the land in controversy, if the construetion of the will ds to this subject, was to be made as the defendant insists it should be. It is true that when a given subject is devised; and there are found two species of property, the one technically and precisely answering the description in the devise, and the other not so exactly- answering that description, the latter will be excluded, though, had there been no other subject upon which the devise could have operated, it might have been held to comprehend it. 2 Pow. on Dev. 196. Il is on the aforesaid doctrine, we suppose, that the defendant resists the plaintiff’s recovery; But the facts of the case, as shewn by the other patts of the will, and the parol evidence, exclude the defendant from the benefit of the rule: for the rule is to be enforced only where there is no other evidence to explain the description of the subject. Parol evidence is admissible to explain ah obvious ambiguity of expression, as to the description of the subject of a devise; a reference to the actual state of the facts is not construction, but explanation. And on this principle, parol evidence, shewing the situation or occupation of the land at any given time, has always been admitted. So whether parcel or not parcel of the subject devised. Coventry on Con. Ev. 30, 31. We are of the opinion that the decision of the Superior Court was correct, and that the judgment must be affirmed.

Per Curiam. Judgment of the Superior Court affirmed.