{ "id": 11268839, "name": "FOIL v. NEWSOME", "name_abbreviation": "Foil v. Newsome", "decision_date": "1905-04-18", "docket_number": "", "first_page": "115", "last_page": "124", "citations": [ { "type": "official", "cite": "138 N.C. 115" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "95 N. C., 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273263 ], "opinion_index": 0, "case_paths": [ "/nc/95/0131-01" ] }, { "cite": "115 N. C., 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652357 ], "opinion_index": 0, "case_paths": [ "/nc/115/0540-01" ] }, { "cite": "90 N. C., 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698480 ], "opinion_index": 0, "case_paths": [ "/nc/90/0607-01" ] }, { "cite": "60 N. C., 268", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "56 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686464 ], "opinion_index": 0, "case_paths": [ "/nc/56/0120-01" ] }, { "cite": "46 N. C., 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682009 ], "opinion_index": 0, "case_paths": [ "/nc/46/0184-01" ] }, { "cite": "44 N. C., 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276603 ], "opinion_index": 0, "case_paths": [ "/nc/44/0365-01" ] }, { "cite": "133 N. C., 403", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "114 N. C., 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649886 ], "opinion_index": 0, "case_paths": [ "/nc/114/0241-01" ] }, { "cite": "89 N. C., 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683360 ], "opinion_index": 0, "case_paths": [ "/nc/89/0447-01" ] }, { "cite": "34 N. C., 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684381 ], "opinion_index": 0, "case_paths": [ "/nc/34/0061-01" ] }, { "cite": "19 N. C., 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276292 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/19/0479-01" ] }, { "cite": "12 N. C., 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694051 ], "opinion_index": 0, "case_paths": [ "/nc/12/0382-01" ] } ], "analysis": { "cardinality": 813, "char_count": 18131, "ocr_confidence": 0.454, "pagerank": { "raw": 5.366071492630629e-07, "percentile": 0.9436878366267686 }, "sha256": "f17b12eef3df1710790498b21517cec997a601ed7ebdf5bef98aac99d50af61a", "simhash": "1:81c484571c4e8548", "word_count": 3153 }, "last_updated": "2023-07-14T14:59:46.048294+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Walker, J., did not sit in these appeals." ], "parties": [ "FOIL v. NEWSOME." ], "opinions": [ { "text": "Connor, J.\nTbis was a petition for sale of land for partition. The plaintiffs claimed an undivided interest in the locus in quo with defendant Ingold Newsome, as heirs at law of Tobias Kesler. Defendant Ingold Newsome claimed that she was sole seized for life, remainder to her children, and other defendants, under the will of said Kesler. That defendant James IT. Ramsey trustee, was empowered under the provisions of the will to sell the land and invest the proceeds for the purpose of executing the trust declared therein. The cause having been transferred to the trial docket of the Superior Court, the parties agreed that the judge should try and determine the controversy upon an agreed state of facts in a suit for the purpose of obtaining a construction of the will \u2014 waiving all questions of form or procedure. The decision of the controversy is dependent upon the construction put upon the fifteenth item of the will, which is in the following words: \u201cThe balance and residue of my estate of every kind I give, bequeath and devise to my daughter Ingold Newsome, wife of A. II. Newsome, during her life time; said estate to be placed in the hands of my trustee hereinafter named and appointed for the uses and purposes as follows, to-wit: said trustee is to invest and keep invested said estate, and the interest or income accruing therefrom is to be by him paid to my said daughter, Ingold Newsome, for and during her natural life, and at her death said estate to be paid over by said trustee to her issue: provided, however, that my said trustee shall not be chargeable with interest on any money or personal estate lying idle in his hands.\u201d It appeared that said Kesler held mortgages upon certain tracts of land described in the petition. That said mortgages were foreclosed and the lands purchased by the executor. As to such tracts the plaintiffs do not except to the judgment of the court. The other tracts were owned by Kesler at the time of his death. The plaintiffs are his children and grand children, and defendant Ingold is his daughter \u2014 the other defendants, except Ramsey, trustee, being her children. Ilis Honor was of opinion that by Item 15 of the will a life estate was devised to the defendant Ingold. That said land, together with the personalty, was to be under the control of the defendant Ramsey, trustee. That as to the remainder in fee after the termination of the life estate, the testator died intestate and the same descended to and vested in his heirs at law. That as there was objection to the partition during the continuance of the life estate, the prayer of the petition was refused. To this ruling the plaintiffs excepted and appealed, assigning as error in the judgment of the court \u201cthat the defendant Ingold Newsome is entitled to a life estate in all the lands described in the petition. That plaintiffs are not entitled to partition during the life of said Ingold.\u201d\nWe concur with His Honor in holding that Item 15 of the will, being the residuary clause, includes the real, as well as the personal property. \u201cThe word \u2018estate/ taken in its primary sense, as used in a will, without anything in the context to limit it, is a word of very extensive meaning. It is nearly synonymous with the word \u2018property\u2019 when that word is not qualified by the word \u2018personal.\u2019 Hnder the word \u2018estate\u2019 used in its primary sense, real property of every description will ordinarily pass, and the presumption is that the testator, in using the word, uses it in its broad and inclusive signification, unless the context restricts its meaning to some particular species of property.\u201d 1 Underbill on Wills, 295. In Clark v. Hyman, 12 N. C., 382, Taylor, C. J. says: \u201cThat the words, property, possessions or estates are sufficient, if not qualified, to carry real estate, is well settled by many decisions but it is otherwise, if it appears from the context that personal estate only was in contemplation of the parties.\u201d In Harrell v. Hoskins, 19 N. C., 479, Gaston, J., says: \u201cThe words \u2018all my property,\u2019 unless they are explained by other words in the will to have a different meaning, embrace every subject of property and every interest therein which belonged to the testator. The word \u2018estate\u2019 is confessedly sufficient for these purposes; and in holding it to be thus sufficient, it has been said to import the entire property of the testator. In Pippin v. Ellison, 34 N. C., 61, it is said that the word \u2018estate\u2019 has a broader meaning than property. Schouler on Wills, Sec. 510; Pritchard on Wills, 415; 11 Am. & Eng. Enc. (2nd Ed.) 359; Page v. Foust, 89 N. C., 447. In the case before us the word \u2018estate\u2019 is followed by the words \u2018of every kind.\u2019 The plaintiffs say that conceding the general rule to be as stated, \u2018 it must be taken subject to the well settled modification that the usual import of words may be restrained in their operation by the context; that prior words of general signification may be controlled and modified as to their meaning by subsequent expressions and the intention of the testator reached from the whole will. Holt v. Holt, 114 N. C., 241. It is urged that the words following the general descriptive terms \u201csaid estate to be placed in the hands of my trustee,\u201d \u201csaid trustee is to invest and keep invested said estate and the interest or income accruing therefrom is to be paid,\u201d etc. * * * iier death said estate to be paid over by said trustee\u201d etc. are appropriate to personalty only. AVe have carefully examined the cases of Doe, etc. v. Buckner, 6 Dunford and East 610 (1796) and Doe v. Hurrell, 5 Barn & Ald (7 E. C. L.) 8. We have also noted the observations of Mr. Jarman in regard to these and other cases. Newland v. Majorbanks, 5 Taunt. 208; Jarman on AATlls, 5 Ed., 334. They forcibly illustrate the wisdom of his words. \u201cThe cases * * * often present questions extremely embarrassing to a judge or practitioner, and different minds will almost unavoidably form different opinions as to the weight to be ascribed to particular expressions or circumstances of inapplicability as excluding real estate.\u201d Mr. Underhill says: \u201cThe earlier English cases show a decided tendency to restrict the meaning of the word \u2018estate\u2019 to personal property, meaning thereby everything except freehold lands.\u201d He says that they have been by implication, if not expressly overruled by subseqiient decisions of the same courts. \u201cThe modern tendency, both in England and the United States is to give such words as 'estate/ 'property\u2019 or 'effects\u2019 their broadest meaning consistent with a true construction of the testator\u2019s intention.\u201d The plaintiffs direct our attention to the whole will and say that we will find there manifested an intention sustaining their contention. The will shows a carefully considered plan or scheme in the distribution and settlement of a large estate. The wife is the first provided for. Each child is given real and personal property with limitations and trusts attached thereto. The testator uniformly uses apt words, distinguishing gifts of real and personal property, such as \u201cgive and devise,\u201d and \u201cgive and bequeath,\u201d respectively, whereas in the residuary clause he uses the terms \u201cgive, bequeath and devise\u201d showing a recognition of the different kinds of property to. pass. He carefully excludes one of his grandchildren by name from any participation in his estate. It is true that the terms \u201ckeep- invested,\u201d \u201cpaid over,\u201d relate to handling and disposing of personalty. They also say that the testator uses the word \u201cincome\u201d as synonymous with \u201cinterest\u201d in every other clause in which a disposition of personalty is made. They further say that it is a well settled rule of construction that the heir is favored and can be excluded only by express terms or necessary implication, citing many authorities from this and other courts. 2 Jarman on Wills, 112; Schouler on Wills, Sec. 480; Holton v. Jones, 133 N. C., 403. These well considered arguments are entitled to and have received our most careful consideration. On the other hand defendants\u2019 counsel urge on our attention the equally uniform rule that every testator is \u2018presumed to intend to dispose of all his estate and not to die intesate as to any part. Pearson, J. in Boyd v. Latham, 44 N. C., 365 says: \u201cThe rule ut res magis valeat quarn pereat comes in aid of the general presumption that one who makes a will intends to dispose of all his estate.\u201d Foust v. Ireland, 46 N. C., 184; Apple v. Allen,. 56 N. C., 120. The words in the residuary clause \u201call my estate of every kind,\u201d following the words \u201cgive, bequeath and devise,\u201d strongly indicate a purpose to dispose of all of his property not specifically given away. Gaston, J. in Harrell v. Hoskins, supra, says: \u201cThe devise then of all the property not previously disposed of, either'by gift or loan, is- a residuary devise and will carry with it every re-versionary interest in the testator Avhich has not been specifically devised, whether such interest were in contemplation of the testator or not and whether it were known or unknown to him, unless it expressly ap]Dear upon the will or be necessarily inferred from it that his intention was confined to pass other estates and interest only, and actually to exclude such reversion therefrom. The true inquiry then is, whether it is manifest in the will that the testator intended to exclude the reversion from the operation of the residuary devise.\u201d Discussing the question and considering the arguments urged against the construction, he admits their force and further says: \u201cBut as the 'words of the residuary devise do, in their ordinary as well as their legal import, comprehend this reversion, the argument to be successful should establish a manifest intent in the -testator not to include it * * * Courts of justice in many cases cannot hope to define with certainty the intentions of \u2018 testators. It is safer, when words are found in a will which by usage and legal interpretation embrace certain devisable interests and are used without qualification or explanation, to understand the testator as meaning what he says rather than to indulge in the hopeless pursuit of making out his meaning by refined and minute an\u00e1lysis. Things and interests embraced within the disposing words of a will must be taken to pass by them unless there can be found a declaration plain to the contrary.\u201d In Saumerez v. Saumerez, 4 My. & C. (18 Eng. Ch. Rep.) 330, the testator in the residuary clause of his will used words sufficient to include the reversion in certain realty given to his son for life. The Lord Chancellor said: \u201cBut the difficulty is that in directing the application of such residue of his property, he has used expressions and prescribed a course of dealing not applicable to land but to personalty only. He directs his son\u2019s share to be placed in the names of trustees and the interest to be paid to him who was already tenant for life of the land, and he authorizes his trustees in certain cases to advance part of the capital * * * The question then is, whether such expressions and directions are sufficient to give a restricted meaning to the gift of the residue of the property, and to confine these words (sufficient of themselves to pass freehold as well as personal property) co passing the personal property only.\u201d He proceeds to say that it is'-not necessary to ascertain whether the testator had any particular property in contemplation or not; that such gifts may be introduced to guard against the testator\u2019s having overlooked some property or interest in the gifts already described. \u201cThe circumstances of his using expressions and giving directions applicable only to the personal estate, may prove that he did not at any time consider, or was not aware, that this fee would be a part of his residue, but if such knowledge be not necessary, as it certainly is not, to give validity to the devise, the absence of it, though so manifested cannot destroy the operation of the general intent of passing-all the residue of his property.\u201d It will be observed that the expressions relied upon by the plaintiffs to limit and restrict the meaning of the operative words of gift, relate only to the management and control of the property and not to the estate or interest given, nor to the inclusive scope of the-terms \u201cthe balance and residue of all my estate of every kind.\u201d\nWe are, upon careful consideration, of the opinion that the testator did not intend to die intestate in respect to any portion of his property; that there is nothing in the declaration of trust in regard to the control of the property which plainly shows an intention- to restrict the operation of the words \u201cgive, bequeath and devise\u201d as applied to \u201cthe balance and residue of my estate of every kind\u201d. To put any other construction upon the language used would give to the real estate, not specifically devised, a direction clearly inconsistent with his expressed wish, and destroy the general scheme or plan adopted for the disposition of his property.\nAffirmed.\nDefendants'\u2019 Appeal.\nConnor, J.\nThe defendants (children of Ingold New-some) and J. II. Ramsey, trustee, except to so much of the judgment as holds that Tobias Kesler died intestate as to the reversion in the real estate given to Ingold Newsome for .life. They insist that the language of Item 15 of the will is sufficiently comprehensive to carrry the fee subject to the life estate. The facts are set forth in the opinion disposing of the plaintiff\u2019s appeal. The sanie reasons controlled by the same line of authorities which led us to the conclusion that a life estate passed to Mrs. Newsome, lead us to the same conclusion in regard to the fee. The words \u201cbalance and residue of my estate of every kind\u201d we think include the reversionary interest in the real estate in which a life estate had been carved out. The presumption that a testator intended not to die intestate in regard to any part of his estate, is strengthened by the use of language so inclusive as that found in this item of the will. The same observation applies to a consideration of the entire will. He provides for each of his children, carefully excepting one of his grandchildren by name. We find nothing in the will or the condition of the estate or family, so far as we are informed by the record, to rebut the presumption, or cause us to think that he intended the reversion in the land undisposed of by specific devise of uncertain value, by reason of the uncertain time at which the life estate will terminate, to be held until \u2022such time and divided among his heirs at law. We infer that Mrs. Newsome, at the time the will was executed, September 29, 1894, was a young woman, as six of her children are now infants, only one being of full age. We also infer from the size of the several tracts of land described in the complaint, and the fact that they are not specifically devised, that they are of inconsiderable value. In view of these facts, casting light upon his purpose, as indicated by the language used, we conclude that his intention was in harmony with the presumption raised by the law. This view is sustained by the fact that he appoints a trustee to manage and control the property given to his daughter and children and derive an income thereform. Page v. Atkins, 60 N. C., 268. We are also of the opinion that the trustee has by implication the power to sell the land for the purpose of converting it into an income, producing property. The usual rule adopted by the courts is to find in language imposing upon an executor or trustee the duty of disposing of a mixed fund or property, an implied power to sell real estate to the end that. he may discharge such duty. Vaughan v. Farmer, 90 N. C., 607; Crawford v. Wearn, 115 N. C., 540; Council v. Averett, 95 N. C., 131. This construction reconciles the use of the word \u201cinvest\u201d \u2014 pay over interest or income.\nThe judgment of the court below in respect to the disposition of the reversionary interest in the land described in the petition must be reversed. As all the parties in interest are before the court, we can see no reason why, if so advised, they may not take an order for the sale of, the land by the trustee in this case. In this way, the rights of all parties and security of title to the purchaser may be amply protected.\nThe Superior Court having acquired jurisdiction may retain the cause and make all proper and necessary orders in the premises. Let this be certified.\nReversed.\nWalker, J., did not sit in these appeals.", "type": "majority", "author": "Connor, J. Connor, J." } ], "attorneys": [ "Overman & Gregory for the plaintiffs.", "Burton Graige, L. U. Clement, A. Burwell and T. G. Linn for the defendants." ], "corrections": "", "head_matter": "FOIL v. NEWSOME.\n(Filed April 18, 1905).\nWills \u2014 Residuary Clause \u2014 C(instruction\u2014Estate\u2014Trustees Under Will \u2014 Powers of Sale of Land.\n1. Where a will provided among other things, that \u201cthe residue of my estate of every kind, I give, bequeath and devise to my daughter, during her life time; said estate to be placed in the hands of my trustee; said trustee is to invest and keep invested said estate and the interest or income accruing therefrom paid by him to my daughter during her life and at her death paid over by said trustee to her issue;\u201d held the testator did not die intestate as to any portion of his property, and the above residuary clause includes the real as well as the personal property.\n2. The words \u201cbalance and residue of my estate of every kind\u201d include the reversionary interest in the real estate in which a life estate had been carved out.\n3. The trustee has by implication the power to sell the land for the purpose of converting it into an income-producing property.\n4. The usual rule adopted by the courts is to find in language imposing upon an executor or trustee the duty of disposing of a mixed fund or property an implied power to sell real estate, to the end that he may discharge such duty.\nPROCEEDING for partition by T. A. Eoil and others against A. H. Newsome and others, heard by Judge G. M. OooTce, at the November Term, 1904, of the Superior Court of' Rowan County, upon agreed facts. From the judgment rendered, both parties appealed.\nPLAINTIFFS\u2019 APPEAL.\nOverman & Gregory for the plaintiffs.\nBurton Graige, L. U. Clement, A. Burwell and T. G. Linn for the defendants." }, "file_name": "0115-01", "first_page_order": 155, "last_page_order": 164 }