{ "id": 8656483, "name": "J. T. PILLEY v. J. D. SULLIVAN", "name_abbreviation": "Pilley v. Sullivan", "decision_date": "1921-11-23", "docket_number": "", "first_page": "493", "last_page": "497", "citations": [ { "type": "official", "cite": "182 N.C. 493" } ], "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": "132 N. C., 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657775 ], "opinion_index": 0, "case_paths": [ "/nc/132/0115-01" ] }, { "cite": "116 N. C., 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655013 ], "opinion_index": 0, "case_paths": [ "/nc/116/0518-01" ] }, { "cite": "5 N. C., 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276789 ], "opinion_index": 0, "case_paths": [ "/nc/5/0380-01" ] }, { "cite": "168 N. C., 487", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "173 N. C., 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268734 ], "opinion_index": 0, "case_paths": [ "/nc/173/0038-01" ] }, { "cite": "171 N. C., 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271933 ], "opinion_index": 0, "case_paths": [ "/nc/171/0717-01" ] }, { "cite": "152 N. C., 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269488 ], "opinion_index": 0, "case_paths": [ "/nc/152/0048-01" ] }, { "cite": "136 N. C., 461", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "119 N. C., 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655083 ], "opinion_index": 0, "case_paths": [ "/nc/119/0370-01" ] } ], "analysis": { "cardinality": 529, "char_count": 11321, "ocr_confidence": 0.437, "pagerank": { "raw": 2.97089204724431e-07, "percentile": 0.8502860591486222 }, "sha256": "f63ca1625fde1afea8e96dc78b8c1b5be8824401dca7c6d2030046466455100f", "simhash": "1:2354222114a02f7d", "word_count": 1926 }, "last_updated": "2023-07-14T14:57:09.696199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. T. PILLEY v. J. D. SULLIVAN." ], "opinions": [ { "text": "Adams, J.\nThe contention of the parties jn\u2019esents for determination tbe quantity of tbe estate embraced in items four and five of tbe last will and testament of Alfred S. Pilley. Tbe clause wbicb purports to ingraft upon the devise an unlimited restraint on alienation is not only repugnant to tbe estate devised, but is in contravention of public policy, and therefore void. Latimer v. Waddell, 119 N. C., 370; Wool v. Fleetwood, 136 N. C., 461; Christmas v. Winston, 152 N. C., 48; Lee v. Oates, 171 N. C., 717.\nLord Coke is credited witb tbe observation tbat \u201cwills and tbe construction of tbem do more perplex a man than any other learning; and to make a certain construction of tbem, tbis excedit jurisprudentum artem.\u201d Nevertheless, tbe courts have established canons of construction, which' are designed as guides to the discovery of tbe testator\u2019s intent, for tbe primary purpose in construing a will is to ascertain and give effect to tbe intention of tbe maker. Accordingly, 'the entire will should be considered; clauses apparently repugnant should be reconciled; and effect given wherever possible to every clause and to every word. One of tbe arbitrary canons of construction sometimes requires that the word \u201cor\u201d be construed as meaning \u201cand.\u201d 28 R. C. L., 204 et seq.; Satterwaite v. Wilkinson, 173 N. C., 38; Ham v. Ham, 168 N. C., 487. In Dickenson v. Jordan, 5 N. C., 380, tbe testator devised certain land to bis grandson in fee^with tbe limitation tbat if be died before be arrived at lawful age or without leaving issue, tbe land should go to bis other grandson in fee. Judge Taylor said: \u201cAccording to a literal construction of tbe will, tbe occurrence of either event would vest tbe estate in John Spier; but it is evident tbat such was not tbe testator\u2019s intention, and tbis intention ought always to be effectuated when it does not contravene tbe rules of law. He could not have intended that tbe issue of William Spier Stewart should be deprived of tbe estate,' if their father died under age; for tbat would operate to take all from those who appear to have been tbe principal objects of bis bounty; yet such would be tbe effect of a literal interpretation of bis will. His intention seems to have been tbat tbe fee should remain absolute in William S. Stewart on tbe hapjoening of either event, either bis leaving issue or attaining to lawful age; or, in other words, tbat both contingencies, to wit, bis dying under age, and without leaving issue, should happen before tbe estate vested in John Spier. To give effect to this intention, it is necessary to construe the disjunctive or copulatively; and there are various clear and direct authorities which place the power of the Court to do this beyond all doubt.\u201d Ham v. Ham, supra, and cases cited. An application of this principle requires that the word \u201cor\u201d be read \u201cand,\u201d in the expression \u201cwithout heirs or intestate.\u201d\nThe testator evidently did not intend that the limitation over should take effect in case Kathleen, although leaving heirs, should die intestate. It is equally manifest that the words \u201cheirs\u201d in the expression referred to should be construed as meaning children. Francks v. Whitakers, 116 N. C., 518; May v. Lewis, 132 N. C., 115. The clause \u201cbut the same shall descend to their next of kin\u201d should be interpreted not so much as directing the course of descent as indicating the testator\u2019s reason for the attempted restraint on alienation. The words \u201ceither or both,\u201d in the clause \u201cif either or both should die without heirs or intestate,\u201d cannot be construed as applying to John T. Pilley and Mattie E. Pilley for the reason that they are only tenants for life, and upon the termination of their life estate, whether they die testate or intestate, the remainder will vest in the granddaughter, Kathleen Pilley. In this connection it will be noted that the limitation over is to \u201call my children\u2019s heirs, share and share alike.\u201d In point of legal interpretation the substance of the devise in items four and five is this: \u201cI give and devise unto my son, John T. Pilley, and his wife, Mattie E. Pilley, an estate in all my lands and tenements, with such privileges as may be necessary for their convenience and comfort, during their natural lives, except the twenty-five acres devised to my daughter, Harriet Ohauncey; and after their death I give and devise said land to my granddaughter, Kathleen Pilley, and if she should die intestate and without children, then said land shall be divided among all my children\u2019s heirs, share and share alike.\u201d The testator gave to John Pilley and his wife a life estate with remainder in fee to Kathleen Pilley, defeasible in the event of her dying intestate and without children. The plaintiff, therefore, cannot convey an absolute fee to the defendant.\nFor the reasons given the judgment is\nReversed.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "Harry McMullan for 'plaintiff.", "A. W. Bailey for defendant." ], "corrections": "", "head_matter": "J. T. PILLEY v. J. D. SULLIVAN.\n(Filed 23 November, 1921.)\n1. Wills \u2014 Restraint on Alienation \u2014 Public Policy \u2014 Void Clauses.\nA devise of land to testator\u2019s daughter and her husband for life, then to their daughter, who takes a defeasible fee upon contingency that she die leaving heirs, with provision that the devisees shall not sell or convey the \u201csaid land or any part thereof to any individual or incorporated company,\u201d and for a division among the testator\u2019s children should the daughter die without leaving heirs, is void as an attempted restraint on alienation and in contravention of public policy.\n2. Wills \u2014 Interpretation\u2014Intent\u2014Repugnancy\u2014Words-\u2014Clauses,\nThe entire will should be construed to give effect to the testator\u2019s intent, reconciling clauses apparently repugnant, and effectuating whenever possible every clause and word.\n3. Same \u2014 \u201cOr\u201d\u2014Words and Phrases.\nWhere the disjunctive meaning of the word \u201cor,\u201d used in a will, is contrary to the testator\u2019s intent under a proper construction of the instrument, it will be construed as \u201cand\u201d when such appears to have been the testator\u2019s intention; and where there is a contingent limitation of an estate over should the beneficiary \u201cdie without heirs or intestate,\u201d this construction of the word \u201cor\u201d will apply when the testator evidently intended the limitation over to take effect upon the happening of both events, and not one of them.\n4. Wills \u2014 Restraint on Alienation \u2014 Next of Kin \u2014 Explanatory Clauses.\nA devise of lands for life and then in remainder, and upon the contingency that the lands be divided between the testator\u2019s children, should the remainderman die without heirs and intestate, and after attempting to impose a restraint upon alienation the testator adds \u201cbut the same shall descend to her next of kin,\u201d these words will be interpreted as indicating the testator\u2019s reason for the attempted restraint, and not so. much as directing the course of descent.\n5. Wills \u2014 Estates\u2014Tenants for Life \u2014 Limitations\u2014Contingencies\u2014Heirs \u2014Remaindermen.\nA devise of land to the testator\u2019s daughter and her husband for life, remainder to their daughter, \u201cand if either or both of them should die intestate without heirs,\u201d then to be equally divided between all of the testator\u2019s children: Held, the meaning of the words \u201ceither or both\u201d could not reasonably apply to the life tenants, whose interest would in either event terminate at their death, vesting the remainder in their child specifically mentioned in the will.\n6. Wills \u2014 Estates \u2014 Limitations\u2014 Contingencies\u2014 Defeasible Eee \u2014 Pee Simple.\nAn estate for life to testator\u2019s daughter and her husband, with remainder to their daughter, but in the event either or both should die without heirs or intestate, then it shall be equally divided among all of the testator\u2019s children, share and share alike: Held, the word \u201cheirs\u201d should be construed as \u201cchildren,\u201d and the grandchild of the testator took a remainder in fee, defeasible in the event of her dying intestate and without children, and not an absolute fee-simple estate.\nAppeal from a judgment of Horton, J., at tbe October Term, 1921, of BEAUFORT.\nSubmission of controversy without action.\nThe statement of the agreed facts is as follows:\n\u201c1. That J. T. Pilley was duly appointed as commissioner in a special proceeding in the Superior Court of Beaufort County, entitled, \u00a3J. T. Pilley and wife, Mattie E. Pilley, and Kathleen Lamm, by next friend, J. T. Pilley and Sidney Lamm, ber husband, ex parte,\u2019 and as such commissioner, duly authorized and empowered to convey to J. B. Sullivan the tract of land known as the A. S. Pilley land, containing, 100 acres, more or less. The said proceeding being regular and sufficient to authorize conveyance of said land.\n\u201c2. That the said land was devised by Alfred S. Pilley by his will, dated August, 1913, and recorded in Beaufort County, in Book of Wills No. 4, at page 36, the material parts of which said will are as follows:\n\u201c \u2018Third item. I give and devise to my daughter, Harriet Ohauncey, twenty-five acres of land to be devided off from the west end of my home tract.\n\u201c\u2018Fourth. I give and devise unto my son, John T. Pilley, and,his wife, Mattie E. Pilley, a life estate in all my lands and tenements, with such privileges as may be necessary for their convenience and comfort during their natural lives, except the twenty-five acres above devised to my daughter, Harriet Ohauncey.\n\u201c \u2018Fifth. I give and devise to my granddaughter, Kathleen Pilley, the above mentioned land whereon I live after the death of her father and mother, John T. and Mattie E. Pilley, all except the 25 acre's above devised to my daughter Harriet.\n\u201c \u2018It is my will and desire, and it is hereby stipulated that the devisees of my land herein named shall not sell or convey the said land, or any part thereof, to any individual or incorporative company, but the same shall descend by inheritance to their next of kin, and if either or both should die without heirs or intestate, then it shall be equally divided among all my children\u2019s heirs, share and share alike.\u2019\n\u201c3. It is agreed that said John T. Pilley and wife, Mattie E. Pilley, are now living, and Kathleen Pilley has married one Sidney Lamm and now has one living child.\n\u201c4. That the special proceeding authorizing sale of said land required and directed that the proceeds therefrom should be invested in land in Greenville, N. C., the title of which should be held under the same terms and conditions as set out in said will; that the agreed consideration to be paid for the conveyance of said land by J. B. Sullivan was $1,000.\n\u201c5. That in the event that the court shall be of the opinion that the said John T. Pilley and wife, Mattie E. Pilley, and the said Kathleen (Pilley) Lamm took a fee-simple estate under the provisions of said will, then the plaintiff is entitled to recover of the defendant the agreed consideration of the said conveyance of $1,000 upon the delivery to the defendant of the deed making the conveyance of said land; but that if under the said will the estate of said parties is less than fee simple, it be subject to be defeated by conditions therein stated, then the plaintiff shall not recover anything; that cost shall be taxed against the losing party.\u201d\nHis Honor rendered judgment directing, tbe plaintiff to deliver and the defendant to accept a deed to the land described.- Tbe defendant excepted, and appealed.\nHarry McMullan for 'plaintiff.\nA. W. Bailey for defendant." }, "file_name": "0493-01", "first_page_order": 563, "last_page_order": 567 }