Hubbard v. Wiggins

81 S.E.2d 630 (1954) 240 N.C. 197

HUBBARD
v.
WIGGINS et al.

No. 458.

Supreme Court of North Carolina.

May 5, 1954.

J. C. B. Emringhaus, Jr., Raleigh, for defendant-appellant.

Parker & Sink, Raleigh, for plaintiff-appellee.

Lassiter, Leager & Walker, Raleigh, and Ballard S. Gay, Jackson, for appellees John William Archer, and others.

A. L. Purrington, Jr., Raleigh, guardian ad litem.

DENNY, Justice.

The one question to be determined on this appeal is whether the testatrix intended to give J. Samuel Hubbard the three $100 U. S. Bonds, Series D, which were payable to her or J. Sam Hubbard, and $100; or did she intend to give him the six $1,000 U. S. Bonds, Series D, payable to herself, Mrs. Christian Gay Pate, and $100?

We are not inadvertent to the fact that if the testatrix in the instant case had died intestate, J. Samuel Hubbard would have been entitled to the three $100 U. S. Bonds, Series D, as a matter of law. Ervin v. Conn, 225 N.C. 267, 34 S.E.2d 402; Watkins v. Shaw, 234 N.C. 96, 65 S.E.2d 881. There is also a presumption recognized by the courts in construing wills that a testator intended only to dispose of property owned by him and did not intend to include in a devise or bequest any property over which he did not have the power of testamentary disposition. 57 Am.Jur., Wills, section 1163, page 760; Commercial National Bank of Charlotte v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310. It is not unusual, however, for persons to misconceive the extent of their testamentary rights and to undertake to dispose of property over which they have no power of testamentary disposition. Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45; Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183.

We must remember, however, that in the interpretation of a will to ascertain the intent of the testator, neither presumptions nor technical rules of construction, as distinguished from rules of law applicable to the construction of wills, such as the rule in Shelly's case or the rule against perpetuities, will be permitted to overrule the evident intent of the testator, either expressly or by necessary implication, gathered from the language of the will as a whole. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Wachovia Bank & Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177; Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651.

In 57 Am.Jur., Wills, section 1135, page 731, et seq., we find this statement: "The one rule of testamentary construction to which all others are servient and assistant, it has been said, is that the meaning intended by the testator is to be ascertained and given effect in so far as legally possible. The testatorial intention will control any arbitrary rule, however ancient may be its origin, * * *."

The court below being of the opinion that the provision in the will with respect to the disposition of the bonds is ambiguous, admitted testimony, over the objection of the appellant, to show the extent of the personal contacts of the testatrix with her relatives who were named as beneficiaries in her will.

The appellant assigns as error the admission of the evidence referred to above, which, in sum and substance, discloses that her sister, Nell Gay White, and her husband, John E. White, lived in the home of the testatrix from the time of their marriage in 1931 until the death of Mrs. Pate; that Mrs. White is the sister referred to in line 13 of the will, who was to continue to live in the decedent's home for two years after Mrs. Pate's death; that Dorothy Gay White (now Dorothy Gay White Watkins), who was named as co-executrix of Mrs. Pate's will, is the daughter of Mr. and Mrs. John E. White and was born and reared in the Pate home. (She qualified as co-executrix of Mrs. Pate's will but later married and moved to Meridian, Miss., and was permitted by the court to resign.) That Mrs. Pate from time to time visited J. Samuel Hubbard, a nephew, Nita H. Davis (Juanita Hubbard Davis), a niece, Mrs. Lizzie Hubbard, a niece by marriage, and James A. Wiggins, a nephew. That J. Samuel Hubbard visited Mrs. Pate several times while the Whites lived in her home; so did James A. Wiggins; that Lizzie Hubbard visited her more often than anyone else, and that Lizzie Hubbard was the only relative that visited Mrs. Pate during the last two or three years of her life.

In our opinion, irrespective of whether the will of Mrs. Pate is ambiguous or doubtful in the respect contended by the appellees, this evidence was not prejudicial to the appellant. It simply tends to show that the personal contacts of Mrs. Pate with her relatives, the objects of her bounty, were limited largely to those with the Whites who lived in her home, J. Samuel Hubbard and his sister Nita H. Davis (Juanita Hubbard Davis) of Petersburg, Virginia, Mrs. Lizzie Hubbard of Emporia, Virginia, and James A. Wiggins of West Greene, Georgia.

In seeking to discover the intent of a testatrix, when the language used is ambiguous or of doubtful meaning, it is proper for the court to take into consideration the circumstances surrounding the execution of the will, including the condition, nature, and extent of her property, her relationship to her family and to the beneficiaries named in the will so as nearly as possible to get her viewpoint at the time the will was executed. 57 Am.Jur., Wills, section 1144, page 741 et seq.; Herring v. Williams, 153 N.C. 231, 69 S.E. 140, 138 Am. St. Rep. 659; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; Haywood v. Rigsbee, supra; Anderson v. Bridgers, 209 N. C. 456, 184 S.E. 78; Heyer v. Bulluck, supra; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Wachovia Bank & Trust Co. v. Board of National Missions, 226 N.C. 546, 39 S.E.2d 621.

In Cannon v. Cannon, supra, the late Chief Justice Stacy said [225 N.C. 611, 36 S.E.2d 20]: "The intention of the testatrix is her will. This intention is to be gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent. In interpreting the different provisions of a will, the courts are not confined to the literal meaning of a single phrase. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention." Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613; Weathers v. Bell, 232 N.C. 561, 61 S.E.2d 600; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12; Wachovia Bank & Trust Co. v. Waddell, supra; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578.

It is apparent that the testatrix was a person of very limited education, who undertook to write her own will. Generally speaking it would seem that she had in mind a rather comprehensive and elaborate plan for the disposition of her estate, but did not have sufficient experience and training in such matters to make her intent in respect to certain bequests either clear or effective. She had forty-six nieces and nephews and great-nieces and great-nephews, four of whom she excluded; two living brothers, and one sister; she made bequests to fortyfive of these relatives. Except for those rendering service in connection with the administration of her estate, and Dorothy Gay White (now Watkins), who was reared in her home, all were treated substantially alike unless J. Samuel Hubbard is to take all of her bonds in the aggregate sum of $6,300, and $100, plus $200 along with the other nieces and nephews, great-nieces and great-nephews (except those expressly excluded), in the division of the proceeds from the sale of her home.

The testatrix had two sets of bonds in different envelopes, one containing $300 par value, and the other $6,000 par value. The $300 in bonds in the name of the testatrix and J. Sam Hubbard, and $100 in cash, would be the largest amount given to any of her relatives other than those connected with the administration of her estate, except the sum of $500 bequeathed to James A. Wiggins, who, according to the record, is a Methodist minister; $500 to her sister Nell Gay White, who lived in her home; and $500 to her niece, Lillie Vick, to enable her "to buy thing that she really need." Lillie Vick, according to the pleadings, has six children, while J. Samuel Hubbard has no children. Moreover, if this testatrix knew that she did not have the testamentary power to dispose of the $300 in bonds because they were made payable to her and J. Sam Hubbard, but intended to give him the $6,000 in bonds, it is rather strange and unusual that she would have added "& on Hundred Dollars," to this very large and disproportionate bequest.

Furthermore, later in her will this statement appears, "& I want fifteen hundred dollars in saving Bonds for flowers to the graves." Ordinarily where a definite and certain devise or bequest is made and some part of the same property is disposed of in a later part of the will, the original devise or bequest is only reduced to the extent necessary to comply with the later provision in the will. 57 Am.Jur., Wills, section 1128, page 721 et seq. But, since there is some uncertainty or doubt as to what bonds the testatrix intended to include in the bequest to J. Samuel Hubbard, the court has the right to consider the later bequest or reference to savings bonds, on the question as to whether she intended to include the $6,000 in bonds in her bequest to him.

It is unfortunate that the court was not given any information as to the extent of the testatrix' estate. It was entitled to such information. Often the knowledge of the extent or character of an estate is helpful in ascertaining the intent of the maker of the will. Herring v. Williams, supra; Ripley v. Armstrong, 159 N.C. 158, 74 S.E. 961; Adams v. Cowen, 177 U.S. 471, 20 S. Ct. 668, 44 L. Ed. 851; Blake v. Hawkins, 98 U.S. 315, 25 L. Ed. 139.

The testatrix after making her bequests, exclusive of those in connection with the disposition of the proceeds to be derived from the sale of her home, undertook to set up a trust consisting of the residue of her estate, for the purpose of giving certain children a business education at a cost not to exceed $500 for each of such children. We concur with the ruling of the court below to the effect that the attempt to establish this trust failed because of its indefiniteness or illegibility of the writing in connection therewith. Even so, it is worthy of note that at the time the testatrix executed her will she had no nieces or nephews under eighteen years of age but she did have twenty-two great-nieces and greatnephews seventeen years of age or under, none of whom, in all probability, had finished high school and who might have become eligible for benefits under such trust had the testatrix used sufficient legible language to make her intent effective. However, the mere fact that she failed in her attempt to establish this trust, and also failed to make effective provisions for the establishment of the flower fund, does not prevent the consideration of these attempts on the question of her intent.

In seeking to find and apply the intent of a testator, Stacy, C. J., said in Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659, 661: "It is this quest for the variant minds of testators, with no two situated exactly alike, and the necessity of interpreting language according to the circumstances of its use, that often results in close distinctions and renders the law of wills sui generis. Richardson v. Cheek, supra; McIver v. McKinney, 184 N.C. 393, 114 S.E. 399. Yet after saying this, we assiduously pursue the adjudicated cases for any gleam of light that may help us with the problem in hand. Worthy ideas expressed elsewhere and on other occasions, like nuggets of truth when or wherever found, know no barriers of time or place. It is only the foggy horizon that shuts them out." Surely the testatrix' attempt to set aside "fifteen hundred dollars in saving Bonds for flowers to the graves," is more than a mere gleam of light bearing on her intent obtained from other adjudicated cases. We think it clearly indicates that she did not intend to bequeath the $6,000 in bonds to J. Samuel Hubbard.

Notwithstanding all the facts and circumstances revealed by the record, the appellant seriously contends that the testatrix not only intended to bequeath to him all her bonds, totaling $6,300 and $100 in cash, plus $200 from the proceeds to be derived from the sale of her home, but that she did so in plain and unambiguous language. We do not concur in this view.

As the authorities cited herein point out, in construing a will the language used in a single sentence, clause, or phrase will not be permitted to control as against the evident intent gathered from the entire instrument. A will is not to be construed per parcella, but in its entirety. 57 Am.Jur., Wills, section 1137, page 735 et seq.

In our opinion when the will of the testatrix is considered in its entirety, it does not reveal an intent to give to J. Samuel Hubbard approximately twelve times as much as she gave to any of the other objects of her bounty exclusive of those administering her estate, and from six to ten times as much as she gave to each one of them. We think the provisions of the will support the ruling of the court below to the effect that the testatrix intended to give to J. Samuel Hubbard the $300 in bonds which she kept in a separate envelope, and $100 in cash, plus the amount bequeathed to him from the proceeds to be derived from the sale of her home.

The judgment of the court below is

Affirmed.

BOBBITT, Justice (concurring).

Without elaboration the following considerations convince me that the intent of the testatrix is rightly determined in the decision of the Court.

1. The provisions for Sam Hubbard: "& Sam Hubbard is to have the Bonds & on Hundred Dollars." Here, it will be noted, she does not refer to "all the bonds" or "my bonds." In my opinion, "the Bonds" refers to the bonds with which "Sam Hubbard" is identified, namely, the bonds in her possession, presumably purchased by her, made out to "Mrs. Christian G. Pate or Mr. J. Sam Hubbard." (Emphasis added.)

2. The context: I quote only the provisions immediately preceding and immediately following: "* * * Mary Archer is to have. 2. hundred, in cash. & Sam Hubbard is to have the Bonds & on Hundred Dollars & Nita H. Davis is to have 2. hundred dollars, in cash. & * * *" There is nothing here to suggest that Sam Hubbard is to be the chief beneficiary of the estate. The inference I draw is that these beneficiaries are being treated substantially on the same basis.

3. The addition of the words: "& on Hundred Dollars." It seems to me altogether unreasonable to infer that the intent of the testatrix was to leave Sam Hubbard $6,000 of U. S. Bonds and add to a bequest of this value, "& on Hundred Dollars."

4. The provision: "I want fifteen hundred dollars in Savings Bonds for flowers to the grave." We are not concerned with the validity of this provision. Rather, we are concerned solely with ascertaining the intent of the testatrix. In my view, she did not think she had disposed of bonds other than those with which Sam Hubbard was definitely identified.

5. The three $100 bonds made out to "Mrs. Christian G. Pate or Mr. J. Sam Hubbard" were kept in a separate envelope. The six $1,000 bonds made out to Mrs. Christian Gay Pate were in another envelope marked, "Mrs. W. L. Pate, personal account." The two sets of bonds were separated physically and separated in her thoughts. Having purchased the three $100 bonds, having kept them in her possession, in a separate envelope, with no delivery of these bonds in her lifetime, it seems clear to me that these were the bonds intended for Sam Hubbard when she made provision for him: "& Sam Hubbard is to have the Bonds & on Hundred Dollars." True, resolving a question long noted, this Court held in Ervin v. Conn, and Commercial Nat. Bank of Charlotte v. Frederickson, 225 N.C. 267, 34 S.E.2d 402, that the State law otherwise applicable to gifts inter vivos was superseded by the Federal Statutes and regulations concerning such bonds and that the alternate payee, even though no delivery had been made during the lifetime of the purchaser, was entitled thereto. Even so, the State law prevails to the extent that such bonds are a part of the decedent purchaser's estate for inheritance tax purposes. Watkins v. Shaw, 234 N.C. 96, 65 S.E.2d 881. It seems unreasonable to assume that Mrs. Pate was aware of these refinements. She had not given the three $100 bonds to Sam Hubbard during her lifetime. She thought she was doing so by her will, albeit this result was actually accomplished by operation of law under authority of Ervin v. Conn, and Commercial Nat. Bank of Charlotte v. Frederickson, supra.

In short, my view is that the testatrix purchased the three $100 U. S. Bonds, had them made payable to herself or J. Sam Hubbard, thereby earmarking these bonds for him and identifying him with them, and that she had these bonds and these only in mind when she provided: "& Sam Hubbard is to have the Bonds & on Hundred Dollars." (Emphasis added.)

ERVIN, Justice (dissenting).

While she dwelt among the living, the testatrix purchased three United States Savings Bonds, Series D, of the value of $100 each, which were payable to herself or her nephew Sam Hubbard, and six United States Savings Bonds, Series D, of the value of $1,000 each, which were payable to herself alone. She placed the three $100 bonds in an unmarked envelope. She put the six $1,000 bonds in another envelope bearing her name and the notation "personal account."

The testatrix had the legal power to dispose of the six $1,000 bonds by will. It was otherwise with respect to the three $100 bonds. Under the applicable Federal regulations, the complete title to the three $100 bonds automatically passed to Sam Hubbard by right of survivorship when the testatrix predeceased him without having cashed them.

When she executed her will, the testatrix made two references to bonds. The first appears in lines 20 and 21, and is couched in this language: "Sam Hubbard is to have the bonds & on Hundred Dollars." The second appears in lines 53 and 54, and is expressed in this way: "I want fifteen hundred dollars in Savings Bonds for flowers for the graves." The will does not contain a residuary clause. The United States Savings Bonds were found in their enclosing envelopes after the death of the testatrix, who did not have any claim to any other bonds.

The appeal raises this solitary question for decision: Did the testatrix bequeath the six $1,000 bonds to Sam Hubbard?

We must look to the will for the answer to this question. "In construing a will, the court seeks to ascertain and carry into effect the expressed intent of the testator, i. e., the intention which the will itself, either explicitly or implicitly, declares. * * * Where the language employed by the testator is plain and its import is obvious, the judicial chore is light work; for, in such event, the words of the testator must be taken to mean exactly what they say. * * * But where the language in the will does not clearly express the testator's purpose, or when his intention is obscure because of the use of inconsistent clauses or words, the court finds itself confronted by a perplexing task. In such case, the court calls to its aid more or less arbitrary canons or rules of testamentary construction designed by the law to resolve any doubts in the language of the testator in favor of interpretations which the law deems desirable." Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205, 209.

The attorneys for all the parties and the majority of this court accept as valid the determination of the presiding judge that the words "I want fifteen hundred dollars in Savings Bonds for flowers to the graves" are meaningless and void. I have no quarrel with this holding.

With the second testamentary reference to bonds thus removed, there is virtually no room left for construction. This is true because the testatrix has expressed in plain language of obvious import her unmistakable intention to bequeath to Sam Hubbard the bonds over which she had the power of testamentary disposition.

To be sure, it may be argued that the broad and unrestricted words "Sam Hubbard is to have the bonds" are susceptible of these two constructions: First, the testatrix intended to give Sam Hubbard all "the bonds," that is to say, the three $100 bonds as well as the six $1,000 bonds; Second, the testatrix intended to give Sam Hubbard "the bonds" over which she had the power of testamentary disposition, that is to say, the six $1,000 bonds. Her action in segregating the bonds and labeling the envelope containing the six $1,000 bonds as her "personal account" indicates that she knew the legal powers she had in reference to the bonds and lends support to the second of these constructions. To belabor this point, however, on this phase of the appeal would be as absurd an undertaking as to debate the medieval query "how many angels can dance on the point of a very fine needle without jostling each other." Since the testatrix was without legal power to dispose of the three $100 bonds by will, Sam Hubbard would receive exactly the same legacy, i. e., the six $1,000 bonds, under either construction. Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814.

For these reasons, this court ought to make this determination: When the testatrix said "Sam Hubbard is to have the bonds & on Hundred Dollars," she gave him the six $1,000 bonds and $100. My brethren disagree. They adjudge that when the testatrix said "Sam Hubbard is to have the bonds & on Hundred Dollars," she gave him $100, but no bonds. They adjudge, moreover, that the testatrix died intestate as to these bonds in spite of her positive declaration that "Sam Hubbard is to have the bonds."

These adjudications rest on a premise, which cannot be harmonized with the language of the will or the facts dehors that instrument, and a conclusion which cannot be reconciled with the premise.

This is the premise: When the words "Sam Hubbard is to have the bonds" are read in the light of other provisions of the will and "the fact that testatrix held at her death two sets of bonds," it appears that the testatrix was ignorant of the difference in the state of her titles to the two sets of bonds and believed that she had full legal power to dispose of both sets of bonds by will. As a consequence, the words "Sam Hubbard is to have the bonds" are so ambiguous as to be susceptible of these two constructions: First, the testatrix intended to give Sam Hubbard the three $100 bonds and no others; second, the testatrix intended to give Sam Hubbard the six $1,000 bonds and no others. This ambiguity must be removed by construction.

This is the conclusion: When the words "Sam Hubbard is to have the bonds" are construed in the light of other provisions of the will and "the fact that testatrix held at her death two sets of bonds," it appears that it was the intention of the testatrix to give Sam Hubbard the three $100 bonds which she could not give and to withhold from him the six $1,000 bonds which she could give. Since the testatrix had no legal power to bequeath the three $100 bonds, the testamentary provision "Sam Hubbard is to have the bonds" has no more legal significance than the whistling of the wind through the willows. And since the will contains no residuary clause, the testatrix died intestate as to the bonds in controversy.

Every jot and every tittle in the reasoning of my brethren rests in final analysis on their notion that the testatrix was ignorant of the difference in the state of her titles to the two sets of bonds and believed that she had full legal power to dispose of both sets of bonds by will. Their decision would be without validity even if support for this motion could be found in "provisions of the will and the fact that testatrix held at her death two sets of bonds." If the testatrix incorporated the words "Sam Hubbard is to have the bonds" in her will in the belief that she had full legal power to dispose of both sets of bonds by will, the conclusion is inescapable and unassailable that she intended to give Sam Hubbard both sets of bonds and her will was effectual to transfer to him the six $1,000 bonds over which she had the power of testamentary disposition. The supposed ignorance and the supposed belief of the testatrix do not afford an iota of support for the idea that she intended to divorce one set of bonds from the other.

The basic notion of my brethren and the reasoning based on it are in irreconcilable conflict with the presumption that the testatrix knew her own titles and the powers she had in reference to the property held by her. Funk v. Eggleston, 92 Ill. 515, 34 Am. Rep. 136; In re McNulta's Estate, 168 Wash. 397, 12 P.2d 389; 57 Am.Jur., Wills, section 1163. My brethren do not specify anything in "the fact that testatrix held at her death two sets of bonds" having any logical tendency to rebut this presumption or to sustain their position. I respectfully submit that they cannot do so. When she segregated the bonds, noted on one envelope that its contents belonged to her "personal account," and refrained from making any comparable notation on the other envelope, the testatrix demonstrated that she knew the difference in the state of her titles to the two sets of bonds and that she knew her power of testamentary disposition was limited to the six $1,000 bonds belonging to "personal account."

My brethren assign two reasons for their assertions that their premise and their conclusion find support in provisions of the will. The first is that Sam Hubbard would receive a "very large and disproportionate bequest" if the testatrix' words "Sam Hubbard is to have the bonds" are construed to give him the bonds which she had the legal power to bequeath to him. This reason is wholly unsatisfying. It rests on conjecture. As the majority opinion points out, "the court was not given any information as to the extent of the testatrix' estate." The first reason would be destitute of validity, however, even if it were based on fact. Since the law permitted her to do with her own as she pleased, the testatrix had an absolute legal right to make Sam Hubbard a "very large and disproportionate bequest." The will negates any theory that the testatrix had the intention to distribute her property among the natural objects of her bounty with any substantial degree of equality. She gave various persons varying gifts of varying values. She cut off her brothers with $5 apiece. She disinherited some of the natural objects of her bounty altogether. I fear that the first reason is simply symptomatic of the unconscious succumbing of the majority of the court to a temptation which lies in constant wait for judges—the temptation to make for a decedent in the name of construction a will which the judges deem to be more equitable than the will the decedent has made for himself.

The second reason advanced by my brethren for their assertion that their premise and their conclusion find support in the provisions of the will is bottomed on this second reference to the bonds: "I want fifteen hundred dollars in Savings Bonds for flowers to the graves." The presiding judge held these words void for vagueness, and my brethren affirm this holding. Yet they declare these meaningless words clearly indicate that the testatrix did not intend to bequeath the six $1,000 bonds to Sam Hubbard. I am unable to give assent to this reason. When she inserted these words in her will, the testatrix merely exercised the privilege of changing her mind, and attempted to withdraw from her prior bequest to Sam Hubbard "fifteen hundred dollars in Savings Bonds for flowers to the graves." And this is precisely what she would have done if she had expressed her apparent purpose in words of legal validity. 57 Am. Jur., Wills, section 1128. My brethren do not reveal any reason why the law should give to void words a power which it denies to valid ones. I can think of none. Consequently I favor abiding by this wellsettled doctrine of the law of wills: "A clear gift by an earlier provision will not be modified or qualified by a later obscure or ambiguous provision." 69 C. J., Wills, section 1158.

For the reasons given, the premise and the conclusion of my brethren cannot be harmonized with the language of the will or the facts dehors that instrument.

When the premise of the majority is reduced to ultimate terms, it comes to this: The words "Sam Hubbard is to have the bonds" are so ambiguous as to be susceptible of these two constructions: First, the testatrix intended to give Sam Hubbard the three $100 bonds, and no others; second, the testatrix intended to give Sam Hubbard the six $1,000 bonds, and no others.

The conclusion that the testatrix intended to give Sam Hubbard the three $100 bonds she could not give and to withhold from him the six $1,000 bonds she could give cannot be reconciled with this premise. This is true because the conclusion runs counter to the canons or rules of testamentary construction which an ambiguity of the nature alleged calls into play.

These canons or rules are as follows:

1. The presumption is that the testator intended to dispose of property which the law permitted him to dispose of by will. Commercial Bank v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310; Gano v. Gano, 239 I11. 539, 88 N.E. 146, 22 L.R.A., N.S., 450; Collins v. Capps, 235 Ill. 560, 85 N.E. 934, 126 Am. St. Rep. 232; Wilkison v. Wilkison, 130 Kan. 424, 286 P. 252; Hood v. Nicol, 236 Ky. 779, 34 S.W.2d 429; Lane v. Gess' Adm'r, 223 Ky. 448, 3 S.W.2d 1076; Lasater v. Cumberland Coal Corp., 26 Tenn. App. 277, 171 S.W.2d 407; Ottenhouse v. Paysinger, Tex.Civ.App., 244 S.W.2d 714; Edds v. Edds, Tex.Civ.App., 282 S.W. 638; In re McNulta's Estate, supra; 57 Am.Jur., Wills, section 1163; 69 C.J., Wills, section 1376. The reverse is also true. The presumption is that the testator did not intend to dispose of property over which he had no power of testamentary disposition. Cox v. George, Tex.Civ.App., 184 S.W. 326; Waggoner v. Waggoner, 111 Va. 325, 68 S.E. 990, 30 L.R.A.,N.S., 644; 54 Am.Jur., Wills, section 1163; 69 C.J., Wills, section 1376. As a consequence, a will is not to be given the construction that the testator intended to dispose of property not devisable or bequeathable by him, unless its language is fairly susceptible of no other construction. Commercial Nat. Bank v. Misenheimer, supra; Hood v. Nicol, supra; Long v. Long, Tex.Civ.App., 252 S.W.2d 235; Ottenhouse v. Paysinger, supra; Ford v. Bachman, Tex.Civ.App., 203 S.W.2d 630; Cheatham v. Mann, Tex.Civ.App., 133 S.W.2d 264; Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065.

2. When a person dies testate, it will be presumed that he intended to dispose of all his property by his will, and that he did so dispose of it. As a consequence, any construction of a will which will result in partial intestacy is to be avoided, unless the language of the will compels it. Armstrong v. Armstrong, 235 N.C. 733, 71 S.E.2d 119; Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651; Renn v. Williams, 233 N.C. 490, 64 S.E.2d 437; Jones v. Jones, 227 N.C. 424, 42 S.E.2d 620; Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888; McWilliams v. McWilliams, 223 N.C. 857, 26 S.E.2d 901; Morris v. Wagoner, 209 N.C. 183, 183 S.E. 353; Case v. Biberstein, 207 N.C. 514, 177 S.E. 802; McIver v. McKinney, 184 N.C. 393, 114 S.E. 399; Faison v. Middleton, 171 N.C. 170, 88 S.E. 141, Ann.Cas.1917E, 72; Ireland v. Foust, 56 N.C. 498; Foust v. Ireland, 46 N.C. 184; Boyd v. Latham, 44 N.C. 365; Reeves v. Reeves, 16 N.C. 386.

3. Every part of a will is to be considered in its construction, and none of its words are to be cast aside as idle jargon, if any meaning can be put upon them. Holland v. Smith, supra; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Lee v. Lee, 216 N.C. 349, 4 S.E.2d 880; Edens v. Williams, Ex'r, 7 N.C. 27. To this end, clauses susceptible of inconsistent constructions are to be reconciled, if this may fairly be done. Voncannon v. Hudson Belk Co., 236 N.C. 709, 73 S.E.2d 875; First Nat. Bank of Salisbury v. Brawley, 231 N.C. 687, 58 S.E.2d 706; Holland v. Smith, supra; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168.

My brethren conclude that the testatrix intended to dispose of the three bonds not bequeathable by her and to die intestate as to the six bonds over which she had the power of testamentary disposition, although the language of her will is certainly susceptible of contrary interpretations. They cast aside as idle jargon the testatrix' words "Sam Hubbard is to have the bonds," although this meaning can be put on those words: The testatrix intended to give Sam Hubbard the bonds which the law permitted her to dispose of by her will.

BARNHILL, C. J., and WINBORNE, J., concur in dissent.