ROSABELLE McCULLEN, LOU ETTA JACKSON, MARY LEE, J. G. DAUGHTRY, W. H. DAUGHTRY, LEWIS DAUGHTRY and NORMAN DAUGHTRY v. FRANK DAUGHTRY, Minor, and D. J. TURLINGTON, His Guardian, ADDIE DAUGHTRY, Widow of L. H. DAUGHTRY, and M. E. BRITT, Administrator, c. t. a. of L. H. DAUGHTRY, Deceased.
(Filed 7 October, 1925.)
1. Wills — Interpretation—Intent—Presumption.
In construing a will tbe presumption is against partial intestacy and tbe rules of construction are only for tbe purpose of aiding tbe courts in finding and effectuating tbe testator’s intent, unless it contravenes tbe law or public policy.
*2162. Same — Bequests—“Money on Hand.”
In interpreting the residuary clause of a will, money' on hand will not be construed in its restricted sense when it appears that the testator otherwise intended by a proper construction of his will, and in this case it is held that a devise to his wife and. son of his moneys on hand not only included such as he had in the bank at the time of his death, but commissions on the sale of the balance of a carload of fruit sold by his administrator o. t. a. after the testator’s death.
Appeal by plaintiff from SampsoN Superior Court. Barnhill, J.
Action by plaintiffs to construe will of L. H. Daughtry, deceased, and to declare that the plaintiffs are entitled to certain personal property, as distributees. Judgment for defendants. Appeal by plaintiffs.
Affirmed.
A jury trial was waived, and the court rendered the following judgment :
“The above entitled cause coming on for hearing before his Honor, M. V. Barnhill, judge presiding, at the above term of Sampson Superior Court, and being heard upon the following facts found by the court by consent of both plaintiffs and defendants, with the understanding that thereupon the court might enter judgment construing the will of L. H. Daughtry, deceased, with the right of any of the parties interested to appeal;
“Thereupon, the following facts are found by consent:
“1. That Lewis H. Daughtry died in Sampson County, North Carolina, on 28 December, 1924, leaving him surviving his widow, the defendant, Addie Daughtry, and the following children of a former marriage as his heirs at law and distributees, namely: Three daughters, Bosabelle MeCullen, Lou Etta Jackson, Mary Lee; and five sons, namely: J. C. Daughtry, W. H. Daughtry, Norman Daughtry, Lewis Daughtry and Frank Daughtry.
“2. That the said Lewis H. Daughtry left a last will and testament, a copy of' which is attached to complaint marked Exhibit A, and made a part of this finding of fact.
“3. That said last will and testament was duly admitted to probate in common form on 30 December, 1924, and is recorded in Beeord of Wills of Sampson County, Book 7, page 346, and said will having appointed no executor, letters of administration c. t. a. were on said date issued to the defendant, M. E. Britt, who has entered upon said administration, and has given bond as required by law for the performance of his duties as such.
“4. That at the time of his death the said Lewis H. Daughtry was the owner of certain real estate, the disposition of which is covered by items one, two, three and six of his will, about which there is now no controversy.
*217“5. That the said Lewis H. Daughtry at tbe time of Ms death owned certain tangible personal property, consisting of household and kitchen furniture, referred to in item four, as to which there is no controversy, and in addition thereto owned the specified items devised to his son, Frank (except the mule, which has been disposed of after the execution of the will), and besides said specific items referred to in item fifth owned one horse, one buggy and buggy harness, certain corn and fodder, and a few minor articles of insignificant value, not specifically referred to in the will.
“6. That Lewis H. Daughtry was at the time of his death engaged in selling a carload of fruit for one Waters of the city of Goldsboro, under which as consignee he was entitled to a 12% commission on net sales, and on the date of his death had on hand certain unsold fruit which the administrator, c. t. a., after qualification surrendered to the said Waters; and prior to his death the said Lewis H. Daughtry had sold and collected from the sales of said fruit $1,628.90, of which sum $1,579.76 had been deposited by him in the Bank of Clinton on account in the name of Lewis H. Daughtry, “Special,” the remaining $49.14 being on hand in cash, and the administrator, c. t. a., deducted from the aforesaid $1,628.90 $625.02, as representing the commissions to which the said Lewis H. Daughtry was entitled for fruit sold under said contract and for freight advanced by him, and the remainder of $1,003.88 was by said administrator, c. t. a,., turned over to said Waters in settlement of said assignment contract and account as between the said L. H. Daughtry and Waters.
“7. That the said Lewis H. Daughtry at the time of his death-had on hand money in the form of bills, notes and specie only to the amount of $20.94, which said sum represented all the cash money in his personal possession at the time of his death except the sum of $67.50 in gold coin, which the said M. E. Britt, administrator, c. t. a., has by consent, distributed and divided between and among each and every one of his children, and thus leaving in his hands only the $20.94 above referred to.
“8. That the said Lewis BE. Daughtry at the time of his death had deposited in the Bank of Clinton, subject to his own personal cheek, $842.91.
79. That the said Lewis H. Daughtry at the time of his death had deposited in the Wayne National Bank of Goldsboro, the sum of $4,000 on interest-bearing certificate, in words and figures, as follows:
“No. 11718. Goldsboro, N. C., November 12, 1924.
“This is to certify that L. H. Daughtry has deposited with The Wayne National Bank four thousand add no/100 dollars, ($4,000), *218payable on surrender of tbis certificate properly endorsed, with interest at the rate of four per cent per annum, if left on deposit six months from date. Interest ceases two years from date unless renewed. Tbis bank reserves tbe right to require thirty days notice before withdrawal of this deposit. 1
, “L. B. Paebott, Asst. (Jashier.
Certificate of deposit not subject to check.”
“Upon the foregoing facts, the court adjudges that upon a proper construction of said will, and particularly item seven thereof, that all the property enumerated in items five, seven, eight and nine of the foregoing findings of fact, after first paying all debts and cost of administration, is the property of and should be paid to Addie Daugh-try and Prank Daughtry in equal proportions.”
The last will and testament of L. H. Daughtry is in usual form, and disposes of his lands to his widow Addie Daughtry, his minor son, Frank Daughtry, and his daughters, in items 1, 2, 3 and 6. The other items are as follows:
“Fourth: I give and bequeath to my wife Addie one-half of my household and kitchen furniture, the other half of said household and kitchen furniture I give and bequeath to my boy Frank.
“Fifth: I give and bequeath to my boy Frank, one mule, one turning plow, one cotton plow, one harrow and one weeding hoe.
“Seventh: If there should he any money on hand after paying for my funeral expenses, including a decent and honorable burying, it is to be equally divided between my wife Addie and son Frank.” •
Plaintiff’s exceptions challenge the construction set out in the judgment.
H. G. Hobbs and Favrcloth & Fisher for plaintiffs.
Graham, & Kennedy, Butler & Herring and Henry F. Faison for defendants.
Varser, J.
The one question presented by this appeal is what was the true meaning and intent of the testator in the seventh item of his will when he used the words, “money on hand after paying for my funeral expenses.” The. intention of the testator is the guiding star in this search. Technical definitions give way to popular uses of words when the context shows a nontechnical use. Jones v. Myatt, 153 N. C., 225; Schouler on Wills, sec. 470; Gardner on Wills, 403; Foil v. Newsome, 138 N. C., 115; Page v. Foust, 89 N. C., 447.
There is always a presumption that a testator did not intend to die partially testate, and partially intestate. His very act in making a will *219indicates a purpose to exercise tbe right to dispose of all bis property according to bis will, and not according to tbe provisions of tbe statutes in case of intestacy. Foust v. Ireland, 46 N. C., 184; Boyd v. Latham, 44 N. C., 365; Reeves v. Reeves, 46 N. C., 386; Gray v. Noholoa, 214 U. S., 108; Powell v. Wood, 149 N. C., 235, 238; Peebles v. Graham, 128 N. C., 222; Harper v. Harper, 148 N. C., 453, 457; Blue v. Ritter, 118 N. C., 580; Cox v. Lumber Co., 124 N. C., 78; Speight v. Gatling, 17 N. C., 5; Jones v. Perry, 38 N. C., 200; Mordecai’s Law Lectures, 1281; Cox v. Jernigan, 154 N. C., 584; Austin v. Austin, 160 N. C., 367.
Tbe accepted rules of construction exist only for tbe purpose of aiding tbe courts in finding tbe testator’s intention. Galloway v. Carter, 100 N. C., 111; Rees v. Williams, 165 N. C., 208. Tbe welfare of society is promoted by tbe statutory right of tbe citizen to declare bis intention which be wishes to be performed after bis death in respect to bis property. Blackstone says that, in tbe order of things, this right is necessary for tbe preservation of tbe peace of society and to avoid “an infinite variety of strife and confusion.” Mordecai’s Law Lectures, 1138; Blackstone (Lewis’s Edition), Yol. 2, 490.
Hence, in order to preserve and perpetuate tbe primary principle which underlies tbe statutory right to make wills and testaments, we must find tbe intention of tbe testator, and give it effective force unless it contravenes tbe law, or public policy. Edens v. Williams, 7 N. C., 27; In re Knowles, 148 N. C., 461; Harper v. Harper, supra; Gapehart v. Burrus, 122 N. C., 119; Hines v. Mercer, 125 N. C., 71; Holt v. Holt, 114 N. C., 241; Houck v. Patterson, 126 N. C., 885; Lynch v. Melton, 150 N. C., 595; Bollins v. Keel, 115 N. C., 68; Tucker v. Moye, 115 N. C., 71; Dunn v. Hines, 164 N. C., 113; Taylor v. Brown, 165 N. C., 157; Lynch v. Melton, 150 N. C., 595.
With this approach to tbe consideration of tbe testator’s meaning and intention in using, tbe term “money on band,” and mindful of tbe rules applicable, we are minded to agree with tbe construction declared by tbe learned judge in tbe court below.
Money, in its narrow and restricted sense, may mean only currency or gold or silver coin, bearing tbe government stamp, but in its more general and popular use, it has a much broader meaning, and indicates any current measure of value which serves 'the purpose of coin in its absence. In a will it may mean, if so indicated by tbe context, any form of property. Kennedy v. Briers, 45 Tex., 305; Paul v. Ball, 31 Tex., 10. Money will be held to include real and personal property, if tbe intention is shown by tbe context.
In the matter of tbe Estate of Thomas Miller, deceased, 48 Cal., 165, money is popularly known and used as indicating property of every *220description. Jacob’s Estate, 140 Pa. State, 268. “Tbe rest of my money,” in view of tbe context of a testamentary document, may coyer all tbe residue of an estate. In the Goods of Bramley, 4 British Ruling Cases, 546. “Tbe balance of my money” (In re Miller, 48 Cal., 165). “Whatever money is left after my burial” (Boardman v. Stanley, 21 Week Rep., 644). “All money that remains after all debts are paid” (Re Blackstone, 95 N. Y. Supp. 977). “Tbe residue of all my money” (Nevinson v. Lennard, 34 Beav., 487; Stooke v. Stooke, 35 Beav., 396), illustrate a few of tbe instances of tbe use of tbe popular understanding and meaning of tbe term “money,” when not restricted by tbe context. To tbe same effect are tbe following: Montgomery County v. Cochrane, 121 Fed. Rep., 17; Dabney v. Dottrell, 50 Va. (9 Grattan), 572, 579; In re Thayer’s Will, 149 N. Y. Supp., 141; Pohlman v. Pohlman, 150 Ky., 679; Dillard v. Dillard, 97 Va., 434; Sehouler on Wills, Executors and Administrators, 5 ed., Vol. 1, par. 505; Jarman on Wills, 2 Vol., 372; Jenkins v. Fowler, 63 N. H., 244. Decker v. Decker, 121 Ill., 341, bolds that, “money remaining after my death” included not only actual cash, but all tbe other personal estate of tbe testator, which consisted chiefly of money loaned, and not used in paying debts, including funeral expenses.
When we come to our own decisions we find tbe same views declared. Bradley v. Jones, 37 N. C., 245; Fulkeron v. Chitty, 57 N. C., 244; Apple v. Allen, 56 N. C., 120.
A deposit in bank is, according to tbe common understanding, regarded as cash. Adams v. Jones, 59 N. C., 221. In Page v. Foust, supra, tbe word “effects” held to include land, because tbe will, as a whole, so indicated tbe intention. In Fulkeron v. Chitty, supra, tbe “rest and residue of my moneys” was held to include notes and bonds.
Tbe testator, a man of practical affairs, may be presumed to know what is usually done in tbe course of tbe administration of estates, and that all debts and cboses in action and bank deposits are reduced to cash by tbe personal representative; and tbe funeral expenses, tbe debts, and charges of administration are paid, and then tbe distribution is bad. He certainly is presumed to know that “funeral expenses, including a decent and honorable burying” could not be paid out of tbe $20.94. This is like unto a residuary clause. Tbe intent to use “money” in its popular sense is plain, and tbe judgment appealed from is a correct application of tbe law to tbe facts.
It is, therefore,
Affirmed.