SEAWELL
v.
SEAWELL et al.
No. 593.
Supreme Court of North Carolina.
June 7, 1951.*371 James H. Pou Bailey, Raleigh, for plaintiff appellant.
Seawell & Seawell, Carthage, for defendant appellees.
BARNHILL, Justice.
A tenant in common is entitled, as a matter of right, to a partition of the land to the end that he may have and enjoy his share therein in severalty, unless it is made to appear that an actual partition cannot be had without injury to some or all of the interested parties. G.S. § 46-22; Hyman v. Edwards, 217 N.C. 342, 7 S.E.2d 700; Talley v. Murchison, 212 N.C. 205, 193 S.E. 148; Foster v. Williams, 182 N.C. 632, 109 S.E. 834.
The burden is on him who seeks a sale in lieu of actual partition to allege and prove the fact upon which the order of sale must rest under the terms of G.S. § 46-22, Wolfe v. Galloway, 211 N.C. 361, 190 S.E. 213, and before an order of sale may be entered, such fact must be found by the court. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341.
In the absence of any allegation, proof, or finding that an actual partition cannot be had without injury to some or all of the parties, the court has no jurisdiction to order a sale.
Here all the parties seek an actual partition of the land. The record fails to disclose any evidence to support an order of sale other than a sale of the timber. The parties now assert that none was offered. The essential fact was not found by the court below. It did conclude "as a matter of law that the said 166 acres of land is incapable of division due to the indefiniteness of the description." It is evident, however, that the court was referring to the description of the share devised to plaintiff contained in the will, for the description of the whole tract makes reference to creeks, branches, and lines of adjoining tracts as its boundaries, in addition to calling for courses and distances. So much of the order entered as denies actual partition and directs a sale must be held for error.
This brings us to the more serious question presented by the appeal: Do the parties claiming the land take as purchasers under the will or is the land undevised property descending by inheritance to all the heirs of the testatrix?
The court below held that paragraphs Third, Fourth, and Fifth of the will are void. The appellant concedes that, as to the quantum of the shares attempted to be devised in paragraphs Third and Fourth, the description is too vague and indefinite to be sustained. So then, that particular question is not presented for discussion or decision. The appellant does contend, however, that paragraph Third is sufficiently definite to vest him with title to the main dwelling; that paragraph Fourth vests his brother Oliver with title to the tenant dwelling; that he and Oliver are each to have a share of the land; and that the three children named in paragraph Fifth take title to the remainder after the allotment of the shares to plaintiff and Oliver Seawell. In this the appellees concur. They say in their brief: "That items in the will or sections in the will marked `Third', `Fourth', and `Fifth' are not void so far as these defendants are concerned, and the fact that the Court holds that the lands cannot be allotted to Homer Seawell and Oliver Seawell because of indefiniteness does not void the sections and cause other children of Catherine A. Seawell to be brought into the position of devisees when they are not mentioned in any one of these sections. *372 From reading the will it is definite that Catherine A. Seawell wanted these heirs named to receive the 166 acre tract. It is unfortunate that she did not properly describe the fifty acres to Homer Seawell and the fifty acres to Oliver Seawell, and for this reason the land cannot be divided to these heirs except as to the whole and all of them would be tenants in common on the whole tract of 166 acres."
The contention of the appellant and the concessions of appellees pose an interesting question, the exact counterpart of which has not heretofore been decided by this Court. It is an axiomatic rule of construction that the intent of the testator as expressed by him is to be ascertained from the four corners of the will and that this intent is the guiding star which must lead to the ascertainment of the meaning and purpose of the language used. Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Schaeffer v. Haseltine, 228 N.C. 484, 46 S.E.2d 463. The objective of construction is to effectuate the intent of the testator as expressed in the instrument. Wachovia Bank & Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12; Williamson v. Williamson, 232 N.C. 54, 59 S.E.2d 214; Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625; Weathers v. Bell, 232 N.C. 561, 61 S.E.2d 600. If the language used discloses an ascertainable intent, then that intent must be effectuated, First National Bank of Salisbury v. Brawley, 231 N.C. 687, 58 S.E.2d 706; Wachovia Bank & Trust Co. v. Miller, supra, for the intention of the testator is his will. Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223.
The intention of testatrix need not be declared in express terms in the will, but it is sufficient if the intention can be clearly inferred from particular provisions of the will, and from its general scope and import. The courts will seize upon the slightest indications of that intention which can be found in the will to determine the real objects and subjects of the testatrix' bounty. 28 R.C.L. 218. And it is generally held that in seeking to discover this intention there is a presumption against intestacy. Wachovia Bank & Trust Co. v. Miller, supra.
The will of testatrix, viewed in the light of these rules of construction, discloses her desire as to the disposition of her real property and effectively disposes of the whole tract owned by her at the time of her death. She devised to her son Homer Seawell "the dwelling house where we now reside" and to Oliver Seawell "the four room tenant house." These devises are definite and certain. The devise of the buildings included the land upon which they are situatedthe messuage, Tadlock v. Mizell, 195 N.C. 473, 142 S.E. 713; Blanton v. Boney, 175 N.C. 211, 95 S.E. 361, and includes all that comes within the curtilage. Broadhurst v. Mewborn, 171 N.C. 400, 88 S.E. 628.
While plaintiff concedes he and his brother are not entitled to fifty acres of the land, each, for want of sufficient description, it is clear that the testatrix intended that plaintiff should have a share of her land and that it should be that share which included or surrounded the dwelling devised to him. The same is true as to her son Oliver.
It is equally certain that she intended that the remainder of the tract, after the allotment of shares to Homer and Oliver, should be equally divided among her three children named in the fifth paragraph, and that her daughter Edna Myrick should take no part of her real property.
This intent may be effectuated by the commissioners appointed by the court. One-fifth of the land in value, including the main dwelling, but not including the value thereof or the value of the land within its curtilage, must be set apart and assigned to plaintiff. The same procedure as to the share of Oliver Seawell must be followed so that he may receive one-fifth of the land in value, not including the value of said tenant house and the land within its curtilage. The remainder of the tract must be divided into three shares of equal value, one of which will be allotted to plaintiff as grantee of Floyd Seawell and one each to Gilmer Seawell and the heirs of Ora Bell *373 Seawell Purvis, with the right of equalization by the assessment of owelty charges, if necessary.
The court below adjudged the will valid as to paragraph "Ninth", and the effect of that paragraph is to exclude Edna Myrick from any further participation in the real estate of the testatrix. Harper v. Harper, 148 N.C. 453, 62 S.E. 553; Thomason v. Julian, 133 N.C. 309, 45 S.E. 636; Hoyle v. Stowe, 13 N.C. 318. It is not necessary that she, if living (or her heirs, if she is now deceased), be made parties to this proceeding as directed by the court below.
The court should further consider the petition of some of the parties that the timber be sold for division before the land is partitioned and rule thereon in such manner as the facts warrant.
The order entered in the court below is vacated and the cause is remanded for further proceedings accordant with this opinion.
Error and remanded.