#### CITIZENS BANK v. MURRAY et al.

(Filed 22 December, 1917.)

1. Wills — Estates—Contingent Remainders — Intent.

Where an estate by will is limited over on a contingency and no time is fixed for the contingency to occur, the time of the testator’s death will be adopted unless a contrary intent appears from the terms of the will, etc.

2. Same — Event—First Taker.

Where an estate by will is limited over on the “death of the first taker without issue,” these words, without more, will be given their primary and natural significance and effect the estate with a contingency during the entire life of the first taker, unless there be a contrary intent appearing from a proper interpretation of the instrument.

3. Same — Interpretation,

Both of the positions are subject to the controlling principle that the intent of the testator, as expressed by the terms of the will, must be given effect unless in violation of law; and when it appears from a perusal of the will and the circumstances relevant to its proper interpretation, that a different time was intended, such time must always prevail.

4. Wills — Ambiguity—Interpretation — Intent — Estates — Early Vesting— Object of Testator’s Bounty.

Where ambiguity occurs in the terms of a will, permitting construction, the courts, in its interpretation, will favor that which makes for the early vesting of estates, and the first taker is ordinarily to be considered as the primary object of the testator’s bounty.

5. Same — Contingent Remainders.

A testator leaving a will disposing of a large estate in real and personal property, chiefly the latter, and with large lumber interests, after bequeathing certain legacies to others, enjoined upon his son, his only child, to help his executor in the management of the property and stated that he, to whom the rest of the property was devised and bequeathed, would “naturally fall heir to everything outside of the annuities, and should he not marry or even marry and have no issue, then one-half of what he is worth goes to the three children of M. in' fee”: Held,, the son *63was the primary object of the testator’s bounty, and, under the circumstances, the event to determine his absolute ownership of the property was that of his marriage and having living child or children thereof. Buchanan v. Buchanan, 99 N. C., 808, cited and distinguished.

Civil actiok to obtain construction of a will, beard before Lane, J., ■at April Term, 1917, of Buitcombe.

On tbe bearing it was made to appear tbat George A. Murray bad ■died resident in said county, leaving a last will and testament composed of an original and two codicils thereto, disposing of a large estate consisting of real and personal property, chiefly tbe latter, and appointing plaintiff bank executor. Certain controversies having arisen as to tbe meaning of •said will and codicils, tbe present proceedings were instituted to obtain an authoritative construction of same, all of tbe parties in interest having been made defendants.

Tbe said will made provision for tbe payment of various legacies and annuities, among others, one of $10,000 to ~W. H. Murray, bis son and h.eir, and an annuity of $600 per annum for bis life. Another legacy *of $1,000 is given to bis brother, J. B. Murrell, of Rogersville, Tenn., and others of $2,000 each to tbe three children of said brother, to be paid after tbe death of tbe testator’s sister, and an annuity of $300 for life after tbe death-of an aunt, Mrs. Hutchinson. Having made these preliminary bequests and others, as stated, on matters more directly relevant, tbe will and first codicil are as follows:

“It is my will and desire that upon tbe death of any of tbe annuitants hereinbefore mentioned tbat such annuities shall be paid to tbe surviving annuitants, except in those cases where it has otherwise been herein-before provided. And upon the death of all the annuitants then.it is my will and desire that all my property shall go to my son, W. H. Murray, his heirs, executors or administrators.

“It may be that after my estate is put in shape and after paying the above bequests that the annuities can be increased, in which case all ■annuities are to be increased pro rata accordingly.

“I prefer that my stock in the Citizens Bank and the Citizens Lumber 'Company be held intact by my executor, and that the dividends be collected and used in the payment of the above mentioned bequests and ■annuities as long as the same continue to pay good dividends.

“It is my will and desire that J. E. Eulgham be employed by my ■executor to cooperate with my son, W. H. Murray, in closing up my Tutaiber business, and to aid my executor in the sale of my Wesser Creek lands in Swain County, N. C., and my timber' lands at Lone Star, S. C., ■or any other timber or timber lands that I may own, and that my son, ~W. H. Murray, and Mr. Eulgham shall be paid a' reasonable compensation for their services in doing said work, or at least that said Eulgham *64shall be employed to aid in closing out said lumber business and in the sale of said timber and timber lands so long as he and my said executor and my son, W. H. Murray, can agree.

“As a part of my assets consist of notes secured by real estate, and as it will necessarily be many years, on account of the numerous annuitants, before my estate can be wound up, it is my will and desire that my executor shall collect so much money as will be necessary to meet the payments of the bequests and annuities herein provided for and shall, sell and dispose of my real estate and personal property as it may deem advisable to do so, and after paying the bequests and annuities aforesaid then reinvest the funds by taking notes secured by real estate or discount good notes secured by real estate worth double the amount of the loan, or invest the same in unquestionably good interest-paying bonds or other good securities, but the loans or paper secured by deed in trust on good real estate as above are preferred. I request my son, W. H. Murray, and enjoin upon him the duty of cooperating with my executor in looking after and preserving my estate, which ultimately goes to him and his heirs after the falling in of the annuities, and to see that the provisions of my will are fully carried out.

“I hereby nominate, constitute, and appoint the Citizen’s Bank of Asheville, N. C., as executor of this my last will and testament, hereby revoking all former wills and testaments.

“Codicil to my last will now in my private box at Citizen’s Bank— copy in right-hand drawer of my desk in envelope marked Mrs. A. M. Ross. In the above mentioned will Yeda Merrimon McEatridge, 122 W. 30th St., Indianapolis, was made .an heir to the extent of $240 per year — $20 per month — I wish to increase that to $30 or $360 per year, to be paid to her her natural life.

“My son Will naturally falls heir to everything outside of the annuities — should he not marry^ — or even marry and have no issue, then one-half of what he is worth goes to the three children of J. B. Murrell in fee.

“The household furniture is to be divided between my sister, Mrs. Ross, and Will Murray, my son, and especially is the matter of leaving to and for my sister’s use any and sufficient funds to keep her in comfort and plenty the rest of her life, the estate which is worth near one hundred thousand dollars, should be ample for all these.

“The one thousand paid-up insurance policy in New York Life shall go to my brother, J. B. Murrell, in addition to the other thousand left him, and my old Aunt Nattie N. must never want for anything.

“I want the people mentioned to get the benefit of the money, and I ask and request Will Murray to carry out and see carried out to the best of his ability my wishes.

*65“Get J. E. Eulgbam to belp close out lumber and timber business; be should be paid well for this.”

The second codicil is in no way material to the enquiry.

It was further made to appear that, since the death of G. A. Murray, his son and heir has married and had issue born alive of said marriage, which issue is still living.

Upon this statement, one and chief of the questions presented is whether, under -the second clause of the codicil, the interest bequeathed 'and devised to ~W. H. Murray became absolute on his marriage and the birth of issue, or is same affected with a contingency in favor of the children of J. B. Murrell as to one-half of the estate until the decease of W. H. Murray, the first taker, without issue surviving. The court being of the opinion that the estate of ~W. H. Murray, on his marriage and birth of issue, became absolute, entered judgment so construing the will, and the children of J. B. Murrell, nephews and nieces of the testator, excepted and appéaled.

J. D. Murphey and Garland A. Thomasson for appellants.

B. M. Wells and J. E. Swain for W. H. Murray, appellee.

HoKE, J,

after stating the case: From the facts stated in the record and on the argument, it appears that all matters of controversy growing out of the will of the testator have been satisfactorily adjusted except the one question whether, under the codicil and the facts and circumstances properly relevant to its construction, the estate of W. H. Murray became absolute on his marriage and the birth of issue of the marriage, which issue is still living.

Subject to the position that the intent and purpose of the testator, as expressed in his will, shall always prevail except when the same is in violation of law, it is a recognized rule of interpretation with us that when an estate by will is limited over on a contingency and no time is fixed for the contingency to occur, the time of the testator’s death will be adopted, unless it appears from the terms of the will that some intervening time is indicated between such death and that of the first taker. Bank v. Johnson, 168 N. C., 304; Dunn v. Hines, 164 N. C., 113; Galloway v. Carter, 100 N. C., 111; Price v. Johnston, 90 N. C., 593; Vass v. Freeman, 56 N. C., 221; Cox v. Hall, 17 N. C., 121.

Our decisions further hold that in case of ambiguity in the terms of the will, permitting construction, the courts will favor the interpretation which makes for the early vesting of estates and that the first taker is ordinarily to be considered as the primary object of the testator’s bounty, a position more insistent when such first taker is his child and heir at law. These rules are very convincingly stated by Associate Justice *66 Walker in tbe recent case of Dunn v. Hines, supra, a case very similar to tbe one before us, and this and others of like import are in support of bis Honor’s ruling tbat, under tbe terms of tbe codicil, tbe estate of W. H. Murray, tbe only child and heir at law of tbe testator and tbe chief beneficiary of bis will, became absolute on bis marriage and tbe birth of living issue.

True, as defendant contends, it has been held tbat tbe courts may supply words in a will when its terms are ambiguous and tbe context and the facts and circumstances relevant to its interpretation show tbat this was tbe testator’s meaning and purpose, tbe case cited by appellant, Blum v. Gillett, 208 Ill., 473, being in illustration of tbe principle.

It is true also tbat it is now held with us tbat where by will an estate is limited over on tbe contingency of a dying without issue, tbe contingency will usually be given its natural meaning and affect tbe estate till tbe time of tbe death of tbe first taker. See Buchanan v. Buchanan, 99 N. C., 308, and many other cases. But neither position can be allowed to prevail in tbe present case, where tbe testator has in express terms willed tbat tbe half of tbe estate shall go over in case bis son fails to marry and have issue, thus fixing tbe marriage and birth of issue as tbe time when tbe son’s estate shall become absolute. To uphold tbe construction insisted on by appellants, it would be necessary to add tbe words “which issue shall survive him.” Not only do these words not appear in tbe will, but there is nothing anywhere in it to indicate tbat tbe testator bad any such desire or purpose. On tbe contrary, tbe will throughout shows an affectionate confidence in bis son and bis desire and intent tbat be should be tbe chief beneficiary of bis bounty. Tbe very clause in question begins with tbe statement: “Tbat my son will naturally fall heir to everything outside of tbe annuities.” And while be might naturally be willing to affect tbe half of tbe estate with a contingency in favor of bis brother’s children while bis son was single, it is entirely unreasonable to suppose, in tbe face of this will, tbat when bis son married and bad the responsibility of a wife and children, tbat it was tbe testator’s intent to hamper half of bis estate with a condition of this character till bis death. It is not so expressed in tbe will, and there is nothing in tbe record to justify tbe Court in adding to tbe codicil tbe words required to effect such a purpose.

We regard tbe case of Dunn v. Hines as decisive of tbe present appeal, and tbe .judgment of bis Honor below must be affirmed.

Affirmed.