#### S. W. CARROLL v. MRS. T. D. HERRING et al.

(Filed 17 November, 1920.)

1. Wills — Interpretation— Fee— Powers— Restraint on Alienation— Estates — Executory Devise — Limitations.

When, by proper interpretation, it may be seen by his will, construed as a whole, that the testator intended an equal distribution of his property among his children, a devise of his two certain tracts of land to his son, in fee, but if he die without heirs possessing the lands, or either tract, then to his brother: Held, the conveyance of the fee-simple title left nothing in the testator, to take effect by way of executory devise during the life of the first taker and the expression “but if he die without heirs possessed of said tracts of land then over” to the other son, was to free the devisee from any restraint on alienation, and he could sell and convey a good fee simple title to either, or both of these tracts, failing which, at his death, the lands would go over to his brother.

2. Wills — Devise—Fee—Less Estate — Repugnancy.

A devise of lands generally or indefinitely to a person with a power of disposition, or to him and his heirs and assigns forever, conveys a fee, and any limitation over or qualifying expression of less import is void for repugnancy, unless in the case of a contingent fee or substitution of one estate for another.

3. Wills — Interpretation—Particular Words — Presumption.

Where it is apparent in the construction of a will, that a particular significance was attached by the testator to his use-of a word or phrase, the same meaning will be presumed to b.e intended in all other instances of his use of the same word or phrase, nothing else appearing.

4. Wills — Interpretation—Technical Rules— Punctuation— Transposition of Words.

Technical' rules in cases of ambiguity will not prevail in the interpretation of a will over the evident intent of the testator, either expressly or by necessary implication, gathered from the language of the will, as a whole; and to effectuate this intent the court will, in proper instance, disregard punctuation, or transpose words or sentences.

Appeal by plaintiff from Alim, J., at April Term, 1920, of OumbeR-land.

Action, to remove a cloud upon title and to recover land. Judgment for defendant, and plaintiff appealed.

The case was as follows: James Carroll, Sr., died leaving a will in which, be devised, among other things, two tracts of land to his son, James A. Carroll. The item of said will by which this devise was made reads as follows: “I give, bequeath, and devise to my son, James A. Carroll, two hundred dollars ($200), to be paid by my executors, and I devise to him the ten acres of land known as the Pearce land, on which he has built a house where he lives. Also, 37 acres which I bought of *370Warren Carver, and lying east of the Holly land, both, said tracts to said James A. Carroll in fee, but if be die without heirs possessing these lands, or either tract, with remainder to the heirs of J. W. Carroll.”

A. M. Moore for plaintiff.

Nimochs & Nimochs for defendant.

WalKER, J.,

after stating the case: Plaintiffs admit that, about the year 1902 or 1903, and prior to his death, James A. Carroll conveyed such interest as he had in the 37 acres of land, lying east of the Holly land, and that he was never in possession of this land again. The last clause in the above item, by which this 37 acres of land was devised, shows clearly that it was the intention of the grantor for his son, James A. Carroll, to have a fee-simple estate in the land devised to him, to do with and dispose of as' he saw fit. This last clause is susceptible of but one meaning. What words could the testator have used to more clearly express his desire than “Both of said tracts to the said James A. Carroll in fee, but if he died without heirs possessing these lands, or either trad, with remainder to the heirs of J. W. Car-roll.”

It cannot be seriously contended that the testator intended that the heirs of J ames A. Carroll should be in the possession of the lands at his death. It is true that by inclosing the words, “without heirs” in commas, the intent could have been more quickly and surely discovered.

The intention of the testator, as expressed in his will, is not controlled by the punctuation therein, which may be disregarded, where it conflicts with the manifest intention of the testator, and by so doing the meaning of the will is made more obvious. The court may also supply punctuation for the purpose of clearing up an ambiguity in the will, except in cases where no real ambiguities exist other than that which the punctuation itself creates. 40 Cyc., 1403 (g).

If the testator had desired or intended to convey a life estate only, with remainder over, he would not have inserted the words “or either tract,” for certainly, if the devisee had the power to convey one tract, he had the power to convey both.

“When real estate shall have’ been devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, or it shall be plainly intended by the will, or some part thereof, that testator intended, to convey an estate of less dignity.” Pell’s Revisal, sec. 3138; Whitfield v. Garris, 134 N. C., 24.

Having devised an estate in fee, it is said that there was no estate left in testator to dispose of. If one devise in fee simple he cannot make a limitation over by way of executory devise without cutting down the *371first fee, in order to make room for tbe second; for, after giving a fee simple absolutely, there is no part of tbe estate or interest left in bim. So, if one devise in fee, without an express limitation, and give a general power to .dispose of tbe land, be cannot make a limitation over to a third person in ease tbe first taker dies- without disposing of tbe land, or as to such parts as be does not dispose of, for tbe general power confers tbe absolute ownership, and leaves nothing in the devisor. This was said by Chief Justice Pearson, in McDaniel v. McDaniel, 58 N. C., 353.

“A devise of an estate, generally or indefinitely, with a power of disposition over it carried a fee.” Patrick v. Morehead, 85 N. C., 62; Herring v. Williams, 158 N. C., 1.

“Having annexed a condition after devising a fee, tbe condition is void.” Lattimer v. Waddell, 119 N. C., 370.

Where real estate is given absolutely to one person, with a gift over to another of such portion 'as may remain undisposed of by tbe first taker at bis death, tbe gift over is void, as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition, or to bim, bis heirs and assigns forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy. Tbe only exception to such a rule is where tbe testator gives to tbe first taker an estate for life only, by certain and express terms, and annexes to it tbe power 'of disposition. In that particular and special case tbe devisee for life will not take an estate in fee, notwithstanding tbe naked gift of a power of disposition. Schouler on Wills, Executors and Administrators, pp. 703, 594, in which is cited Mulvane v. Rudd, 146 Ind., 482 and 483 (45 N. E., 659), and others.

Where tbe words of tbe will were, “But should she die without issue and leave any property at her death given by this will,” then over, it was held that an implied power was given, and that tbe devisee acquired' a fee in tbe property. Gallaway v. Durham (Ky., 1904), 81 S. W., 659. Cited in Notes, vol. 30, A. and E. Encyclopedia of Law, p. 737.

An inspection of tbe entire will shows tbe intention of tbe testator to make an equal division among bis children of all bis property, devising bis lands to them in fee, and in only one other instance does be attempt to suggest what shall be done with tbe land after tbe death of tbe devisee, and this suggestion is likewise based on her ownership thereof at her death; but in both these instances tbe devise is in fee, unconditional.

“In construing a will, where there is doubt or ambiguity, tbe true intent and meaning of tbe testator should be gathered from tbe entire instrument, in accordance with tbe rules of law established for tbe purpose. . . . Tbe first taker in a will is presumably tbe favorite of tbe testator, and in doubtful cases tbe gift is to be construed so as to *372make it as effectual to Mm as tbe language of tbe will, by reasonable construction, will warrant. . . . Tbe law favors tbe early vesting of estates, to tbe end that property may be kept in tbe channels of commerce. Hence, a future or executory limitation under a devise in a will will not be construed as contingent, wben construing tbe will as a whole, it appears that tbe intent of tbe testator was that it should be deemed as vested.” Dunn v. Hines, 164 N. C., 113.

In tbe fifth item of tbe will testator devises 77 acres of land to bis daughter, Maria Purvis, and provides further: “Also one-fourth of tbe residue of my estate, and tbe other three-fourths to be divided equally between Aurelia, John Wesley, and James A. Carroll,” further clearly showing that it was bis intent and desire to make an exactly equal division of all bis property among bis children, or as nearly as it could be done.

Tbe law, also, if possible, adopts tbe just, natural, and reasonable rule of an equal distribution among children (40 Cyc., 1411), and if words are used in one part of a will in a certain sense, tbe same meaning is to be given them wben repeated in other parts of tbe will, unless a contrary intent appears. It is a well settled rule of testamentary construction tbat if it is apparent tbat in one use of a word or pbrase a particular significance is attached thereto by tbe testator, tbe same meaning will be presumed to be intended in all other instances of tbe use by him of tbe same word or pbrase. Taylor v. Taylor, 174 N. C., 537.

Tbe above principles are stated as illustrating tbe trend of what this court, and others, have said upon subjects somewhat related to tbe question we have in hand, and not as approving all tbat has been thus said in tbat regard. Though technical doctrines have weight with us in some cases, they will not be allowed to defeat tbe evident intention of tbe testator in construing bis will.

Tbe primary object in interpreting all wills is to ascertain what testator desired to be done with bis estate, and if it can be found in the language of tbe document, bis intention always controls.

It has been said tbat tbe cardinal rule of interpretation is tbat we should seek first and throughout for the testator’s intention, as expressed in his will, and in doing so any obscurity or doubt as to the meaning may be cleared up by giving words their primary or ordinary signification, and so moulding tbe language by repeating, supplying, transferring, or substituting words and sentences, and so arranging them in a reasonable manner and with proper punctuation as will more clearly disclose the true intent and meaning. 40 Cyc., 1386-1405. It will appear, at the pages of the Cyclopedia of Law just noted, that tbe following may be adopted as a guide to a correct interpretation. Tbe cardinal rule in tbe construction .and interpretation of wills or codicils is tbat tbe intention *373of tbe testator must be ascertained, if possible, and, if it is not in contravention of some established rule of law or public policy, must be given effect, and by this is meant the actual, personal, individual intention, and -not a mere presumptive intention inferred from the use of a set phrase or a familiar form of words. For this purpose the will should be construed liberally; but it cannot be construed so as to effectuate an intention which is contrary to some rule of law or public policy. The intention which controls in the construction of a will is that which is manifest, either expressly or by necessary implication, from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used; or, as is sometimes said, the testator’s intention must be ascertained from the four corners of the will. Hence, a will cannot be construed by a mere conjecture as to the intention of the testator; but it is the intention which the testator expressed in his will that controls, and not that which he may have had in his mind, or which he manifested by some other paper not a part of the will, or by previous declarations. Where the will affords no satisfactory clue to the real intention of the testator, technical rules for the construction of wills are to be followed so far as they aid in determining that intention, but any technical rule, if they would tend to defeat such intention, must yield to a practical construction of the will. The principle applies to cases where there is an intention exhibited to make a certain disposition of the property, hut the mode of executing the intention is erroneously, defectively, or illegally prescribed in the will. Pickering v. Langdon, 22 Me., 413; Graham v. Graham, W. Va., 36. Expressions of doubtful or uncertain meaning or equivocal language cannot defeat a general intent clearly expressed in the will. Barrett v. Marsh, 126 Mass., 213; Behrens v. Baumann, 66 W. Va., 56. These passages substantially taken from Oye. are in accord with our own decisions, and it is, therefore, not necessary that we should enumerate them here, as they are cited in the note to the text.

When we consider the simple rules above set forth, and keep them steadily in mind, we find no difficulty whatever in correctly discerning and comprehending the meaning, and the intention of the testator, as expressed in the will now under consideration. He devises the ten acres, known as the Pearce land, to his son, James A. Carroll, and also the thirty-seven acres, in fee, “but if he die without heirs possessing these lands, or either tract, with remainder to the heirs of J. W. Carroll.” If properly punctuated, as he designed it should be, and as correct form suggests, the meaning of this clause is clear beyond dispute. It may be rendered into unobseure English in several ways. The first and most simple is by the slightest punctuation, when it will read thus: “I *374devise to my son James A. Carroll, tbe said tract of land in fee, blit if be die, without beirs, possessing said land, or either of the tracts, remainder to tbe beirs of J. W. Carroll.” Another way: “I devise to my son James A. Carroll tbe said tract of land in fee, but if be die possessed of them,. or either of them, and without beirs, then over to my son J. W. Carroll.” Or still another, which would express tbe limitation over in this way, after devising tbe tracts of land in fee to James A. Carroll: “But if be die without beirs and possessed of (or, in other words, owner of) said tracts of land, then over to my son J. W. Carroll.” This clause was framed, as we find it in tbe will, for tbe evident purpose of relieving bis son, James A.' Carroll, from any restraint of alienation, and leaving him free to convey tbe land during bis life, so as to render it of more value to him. He could keep it and cultivate it, or otherwise use it for bis own profit, or be could sell it.and give a good and indisputable title to tbe purchaser, and take tbe proceeds of tbe sale, or keep tbe land itself, as be saw fit, or otherwise as be might choose in order to advance bis own interest. This is perfectly clear upon tbe face of tbe will alone, but tbe very expression “possessing these tracts of land, or either of them,” is plainly indicative of this purpose. It 'meant, if be sold and conveyed, not only both of them, but either of them, as to both, or as to tbe one sold, tbe title should be good in tbe purchaser, but as to tbe other, that is, tbe one not conveyed, it should go, .at James’ death without issue, to J. W. Carroll. Nothing, it seems to us, could be more fuller and clearer indicated than this intention of tbe testator by tbe language of bis will. Tbe words “possessing these lands” were certainly not intended to qualify, or to stand connected, with tbe expression “without beirs,” so as to read “without beirs possessing these lands,” for we cannot see bow J ames A. Carroll’s beirs could have been in possession, in their own right, of tbe land at bis death.

It is obvious to us that tbe meaning of tbe will must be what we have stated that it is, and that it can only have that meaning.

Mr. A. M. Moore submitted an exceedingly valuable brief, reinforced by a strong oral argument in support of bis position, and tbe case was equally well argued by Mr. Nimocks, but after bearing and considering all that is in tbe record, and enlightened as we have been by tbe fine discussion of tbe question involved, we conclude that tbe judge decided tbe case correctly, when be nonsuited tbe plaintiff.

Affirmed.