#### J. C. RAINES, WILL RAINES, THEO. W. RAINES, H. C. GABBETT, and E. R. GARRETT v. MARY D. OSBORNE, Executrix of MRS. FANNY J. RICKS, Deceased.

(Filed 13 December, 1922.)

1. Wills — Interpretation.

In interpreting a will to ascertain a testatrix’s intention, tbe court should place itself as near as may be in her position, and when the language she has therein used is ambiguous or doubtful, it should take into consideration the situation of the testatrix at the time and the relevant ■facts and circumstances .surrounding her at the time the will was executed, the first rule of construction being to give effect to the testatrix’s intention as found in the terms of the will and within the limits which the law prescribes; and the predominant and controlling purpose of the testatrix must prevail when ascertained from the general provisions of the instrument over particular and apparently inconsistent expressions to which, unexplained, a technical force may be given.

2. Same — Devises—Domestic Servants — Employees.

A bequest in a will “to any servant or any other household employee” of the testator should be construed as if expressed “to any household servant or any other household employee,” and does not include within its meaning those who worked upon the testator’s farm, occasionally doing carpenter’s work in the home, laying cement in the house, or laying rock on the premises, making flower boxes, etc., though occasionally, or at rare instances, they may have performed some slight service that may come within the letter of the definition though not within its spirit, and the clear intention of the testatrix.

3. Wills — Interpretation—Intent—Evidence—Parol Evidence.

Parol evidence of a testator’s declarations of his intent in making a will, made before or at the time he executed it, is incompetent, the rule being that the intent as gathered from the written instrument, under the established rules of interpretation, will prevail.

Stacy, J., dissenting; Clark, O. J., concurring in the dissenting opinion.

Appeal by plaintiffs from Bryson, J., at September Term, 1922, of Pole.

Quinn, Hamrick & Harris for plaintiffs.

B. M. Bobinson for defendant.

Walices, J.

Tbis is tbe appeal of tbe plaintiffs, J. 0. Eaines, Will Eaines, Theodore Eaines, E. C. Garrett, and E. E. Garrett, or of tbe plaintiffs other than EL Ewart Constant, from tbe judgment against them in tbe court below.

In tbe defendant’s appeal we settled tbe meaning of tbe two items, Nos. 11 and 12, in tbe will of Mrs. Eichs, with reference to what was meant by tbe words “To any servant, or any other household employee,” construing those words as if they read “To any household servant or any other household employee,” and thus considered, it is our opinion that *600none of the present appellants bas brought himself within the meaning of those items. , Mrs. Ricks, at the time of her death and for many years before that event, owned a very large tract of land, known as “Ricks-haven,” upon which she resided. There were about one hundred acres of this land in cultivation, where she raised wheat, corn, rye, potatoes, cabbages, and peas. She had a granary and barns, and an orchard from which she gathered and canned a large quantity of fruits.

The appellants lived on and cultivated for themselves separate small farms of the larger tract of land, and there is testimony tending to show that at least one if not more of them occasionally did work of various kinds in and about the house. As an illustration, we extract a clause from the testimony of Joe 0. Raines, one of the appellants, as to the sort of work done by him: “I did just anything she wanted done, on the road and farm and buildings, and laid rock and brick and built flower boxes and worked on the yards building up places to sow grass, and I did carpenter work in the house and laid cement floors. There were about 100 acres of land in cultivation, and she raised wheat, corn, rye, potatoes, cabbage, peas, and she had quite an orchard and canned a good deal of fruit, for I helped with the sealing of the cans. I drove her car for her. H. E. Constant worked about the house mostly. My work was here and yonder, no certain place, but the last part of Mrs. Ricks’ life most of my work was up about the house.” But it was not household work either in the legal or popular sense of those words. He did no such work in or about the house as that performed by H. E. Constant, or as that contemplated or intended by the testatrix when she wrote the items Nos. 11 and 12. They were not in any proper sense household servants or household employees. They were farm laborers, or persons engaged in outside work, although they may occasionally have done work near or even in the house, and even those seem to have been rare instances. Carpenter’s work, done in the house, or that of laying cement or laying rock, making flower boxes, and road or farm work, would never be supposed to mean housework, or the persons doing those things upon special request of Mrs. Ricks could never be properly or correctly considered as either household servants or household employees.

In determining the testator’s intention, the court should place itself as near as possible in his position, and hence where the language of the will is ambiguous or doubtful, should take into consideration the situation of the testator and the facts 'and circumstances surrounding him at the time the will was executed. 40 Oye., p. 1392. This rule has been adopted in North Carolina. Bunting v. Harris, 62 N. C., 11; Freeman v. Freeman, 141 N. C., 97. There are many other cases that could be cited as adhering to this rule. The first great rule in the *601construction of wills is tbat tbe intention of tbe testator must prevail, provided it can be effectuated witbin tbe limits wbicb tbe law prescribes. Leeper v. Neagle, 94 N. C., 338. In tbe construction of a will, tbe predominant and controlling purpose of tbe testator must prevail wben ascertained from tbe general provisions of tbe will over particular and apparently inconsistent expressions to wbicb, unexplained, a tecbnical force is given. Francks v. Whitaker, 116 N. C., 518.

Even if we could apply to tbis case tbe principle advanced and much relied upon by tbe appellants, as to tbe general or primary intention taking precedence of tbe particular or secondary one, for wbicb tbey cite 40 Cyc., pp. 1393 and 1399, we would be unable to bold tbat tbe appellants were either “household servants or household employees.”

Tbe appellants do not answer tbe description of “household servants •or household employees,” who are those employed in tbe mansion bouse, and wbicb words were certainly not intended to embrace those who worked out of doors upon tbe home place, and were not even regularly ■employed to do work witbin tbe curtilage.

Tbe clause of tbe will under wbicb tbe plaintiff claimed a legacy in Frazier v. Weld, 177 Mass., 513; 59 N. E., 118, was as follows: “I give and bequeath to each one of tbe servants who, at tbe time of my death, shall have been in my employ at my homestead, or at tbe stable connected therewith, a period of four consecutive years, tbe sum of one thousand dollars.” In construing tbis clause, tbe Court said: “In tbe present instance we think tbat this testator used tbe expression ‘at my homestead’ in tbe sense of ‘at my dwelling-house.’ We think, therefore, tbat tbe bequest was intended for only such servants as were employed in tbe mansion bouse or tbe stable, and not for those who worked out of doors upon tbe home place. It was to domestic servants-and to stable bands. We think the bequest is to only such servants as were hired to work in tbe bouse or tbe stable. Whether tbe plaintiff is a legatee depends upon tbe general nature of bis employment, and be was an out of doors laborer rather than a servant employed at tbe bouse or stable. Tbe small proportion of bis work done in tbe bouse or stable was merely incidental to bis main employment, and did not bring him witbin tbe class of servants employed at either of these places for tbe necessary four consecutive years, witbin tbe meaning of tbe first sentence of tbe clause giving tbe bequest.”

Murphy v. Lawrence, 218 Mass., 39; 105 N. E., 380, was a case where tbe article of tbe will upon wbicb plaintiff relied for recovery was as follows: “I also give $5,000 to each of my domestic servants, other -than those mentioned in tbe two preceding articles, who shall be in my service at my decease, and who shall have been in such service for tbe five years immediately preceding my death.” Upon tbis clause tbe *602Court says: “Tbe question is, Was tbe plaintiff a ‘domestic servant’ within tbe meaning of that term as thus used by tbe testator? Tbe servants employed at this establishment consisted, at least, of Sherman, tbe coachman, a saddle horseman, and tbe plaintiff, who, as tbe trial judge has found, was ‘engaged in tbe employment of tbe testator as a stableman or groom, whose duties were principally in connection with tbe care of tbe horse and at tbe stable,’ and tbe two female servants in tbe bouse, who were sisters, one serving as cook and tbe other second girl or waitress. These two sisters were tbe only servants then or thereafter living in tbe bouse up to tbe time of tbe testator’s death. It is manifest that in framing this clause tbe testator was thinking only of tbe same general class as tbe Kelly sisters, that is, persons whose chief or only duty was in tbe bouse, and that only such a person was regarded by him as a domestic servant within tbe meaning of tbe clause. Tbe duties of tbe plaintiff, as found by tbe trial judge, were not of that kind, and upon such findings it follows as a matter of law that tbe plaintiff’s case falls.”

We could hardly cite two cases of such high authority and entitled to so much respect where tbe facts are so nearly identical with those we are now considering, and we fully concur in tbe construction which tbe court placed upon those wills, and tbe principle there applied is controlling in this appeal.

Our decision on tbe question of evidence is also against -tbe appellants, and is tbe same as that in Constant’s appeal. “Tbe general rule is that parol'testimony is not competent to prove a testator’s declarations prior to or after tbe execution of bis will to aid in its construction, nor are such declarations admissible even if made at tbe time of tbe execution. Since tbe testator’s intention is to be ascertained from bis written will, bis parol declarations of bis understanding of tbe meaning of bis will are not admissible for tbe purpose of interpreting bis testament. It is obvious that if verbal declarations were admitted, wills might be overthrown which expressed tbe intention of one who could not dispute evidence of bis declarations, nor give explanations of them, and thus grave evils would result.” 28 Ruling Case Law, p. 280. “It seems to be generally held that tbe declarations of a testator are not competent upon tbe question of tbe interpretation of tbe contents of bis will.” In re Shelton, 143 N. C., 218; 10 Anno. Cases, 531. In that ease tbe Court also says: “This exception to tbe general rule prohibiting hearsay, however, does not make competent tbe testimony of tbe witness by whom contestant offered to prove statements made by tbe testator in November, 1904, as to bow be was going to leave bis property. It is generally agreed that tbe declarations of tbe testator may not be received to explain, change, or add to a written will, nor can it be revoked by *603parol. 1 Eedfield on Wills. We see no view in wbieb said evidence was competent on this trial.” See, also, note to Ann. Gas., 1915 B, page 16.

There was no error, therefore, in the opinion and decision of Judge Bryson directing a judgment of nonsuit against the appellants.

No error.

Stacy, J.,

dissenting: The law is correctly stated in the opinion of the Court, but I am unable to agree with its application to the facts in the instant case. In my judgment the plaintiffs are entitled to take under items 11 and 12 of the will of Mrs. Eicks, or, at least, to have the question determined by a jury.

Clark, C. J., concurs in dissenting opinion.