McCall v. Gillespie, 51 N.C. 533, 6 Jones 533 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 533, 6 Jones 533

ROBERT McCALL et al v. ALTHEA GILLESPIE.

Where a testator, seized of a tract of land, with known metes and boundaries, showed by the whole scope of his will, that he intended to provide a home for his wife and one daughter, at one end of the tract, and for his other children, as a class, at the other end, but called for no particular boundary, except a dividing line, made up of several other lines, which, all together ran nearly, but not quite through the original tract, it was Held, that to ascertain the interest of the wife and daughter, the outer boundaries of the old tract, were to be followed from where the dividing line intersected with one of them.

Where one of two cross fences was called for in a will, it was Held proper to resort to proofs dehors the will to determine which was intended.

EjectMENt, tried before Mahly, J., at the Spring Term, 1859, of McDowell Superior Court.

The object of the action was to recover the possession of a parcel of land, marked in the annexed diagram, as “ disputed premises,” lying partly on Mountain creek and partly on Cove creek, and being a portion of a larger tract of land, of which William Gillespie died seized and possessed.

The case turned upon the construction of a devise in the will of the said William Gillespie, and the proper boundaries of the land described therein. The devise is as follows :

“Item. To my dearly beloved wife, Judith Gillespie, I leave part of the plantation, beginning at the ford of the branch, this side of the barn, take the fence including the garden to the stone chimney, thence with the cross fence to the ditch or creek, thence with the creek to the beginning on a large white oak, including all the houses and improvements to her for life, and Althea Gillespie to have the same at her mother’s death: The balance of the old tract that belongs to me, the rest of the legatees can divide to suit themselves.”

There was evidence of a cross fence from B to K, and also of a cross fence from B to C, and from 0 along a ditch to Cove creek at D. There was also evidence, that at F, near Gove creek, stood the “ large white oak” mentioned in the will, as the “ beginning corner.”

A was admitted to be the ford of the branch, B the rock chimney — besides the ditch from 0 to D, which was proved, there was evidence that Mountain creek had been straightened by cutting or ditching.

The plaintiffs’ counsel contended below—

1. That the description of the land, given to the widow for life, &c., was too vague and uncertain to be supported ; that there were no data by which you could get away from the creek and include any land at all.

2. And if wrong in this ; that the true running of the line of division was from A to B, thence to K, and so down the Mountain creek to Gove creek, and then down the latter to the beginning.

The Court was of opinion, that if the line, designated in the devise, ran from A to B, and thence down either of the cross fences to Gove creek, and then down the creek, and the jury should find the white oak at E, to be the terminus therein called for, it would be proper to go to it.

The Court was furthermore of opinion, that it was the purpose of the testator (to be plainly inferred from the language of the clause itself, as well as from other parts of the will) to divide this body of land into two parts, throwing a portion on one side of a line for the use of his wife and daughter, and leaving the residue to be divided among his other legatees, and he, therefore, instructed the jury, that after arriving at E, they might run around the outer boundaries on the east, so as to include the improvements. It was left to the jury to determine upon the proofs, which of the cross-fences was intended, and to which side the disputed premises belonged.

The jury found a verdict in favor of the defendant, and the Court having rendered a judgment accordingly, the plaintiffs appealed.

Gcdther, for the plaintiffs.

Avery, for the defendant.

Battle, J.

The terms of the devise, under which the defendant claims the land in controversy, are not, of themselves-, so vague and uncertain, as to make it void npon the ground of its being a patent ambiguity. Whatever difficulty there may be in identifying and locating the part of the tract of land, which the divisor intended for his wife during her life, and thón for his daughter, arises out of the parol proof, and is, therefore, a latent, and not a patent ambiguity. The true enquiry, then, is, whether there has been a sufficiency of that kind of proof to remove the ambiguity, by showing what are the boundaries of the land intended to be conveyed. Upon that question, our opinion is decidedly in favor of the defendant. The ford of the branch, the stone chimney, Cove ©reek, and a white oak at the beginning of the tract of land, as laid down on the plat, are all proved and admitted. Two cross-fences are shown, and theie was sufficient testimony to be left to the jury, and to justify them in finding, that the one which led to the ditch, was the one called for in the will, and then to go down the ditch or creek, and then with the creek to the beginning, was only following out the direction therein plainly given. But it is here objected, that this description, as is shown by the plat, does not iuclude any land, because there are no calls for either course or distance, or other way, by which the beginning at the ford can be reached. The reply is, that it is apparent, from a view of the whole will, that tlio testator intended to provide homes for bis wife and each of his children, and that his wife and his daughter, Althea, should have a part of what he calls his “ old tract,” upon which he was then living. His description of the part, which he designed for them, is not complete, but it goes far enough to indicate, with sufficient certainty, that he intended them to have all of the land lying east of the ditch and north of the creek, (Cove creek) which ran to, or near the beginning white oak, indicated on the plat, as being at E. This will include “ all the houses and improvements,” and also the disputed premises, leaving the balance of the old tract to- be divided among his other chiMren, so as to suit themselves. This con-struetion will give effect to every part of the will, and no doubt will carry out the intention of the devisor, as either therein expressed, or therefrom reasonably to be inferred. The judgment of the Court below, having been rendered in accordance with this view, must be affirmed.

Per CueiaM, Judgment affirmed.