{
  "id": 8623933,
  "name": "W. L. SUTTON and Wife, ANNIE FIELDS SUTTON, v. MABEL B. QUINERLY, CORA A. CRADDOCK, JOHN HICKSON and Wife, THELMA JENKINS HICKSON; LOIS HICKSON SCOTT and Husband, K. D. SCOTT; WILLIAM F. HICKSON and Wife, MARGARET COUCH HICKSON; EDWARD B. HICKSON, ROBERT W. HICKSON, PHILIP H. HICKSON and Wife, WINAFRED ALLEN HICKSON; ANN HICKSON BOWEN and Husband, HARRY BOWEN; JAMES F. HICKSON and RICHARD C. HICKSON, and FRANCES FIELDS HOLLIDAY and Husband, JOSEPH W. HOLLIDAY",
  "name_abbreviation": "Sutton v. Quinerly",
  "decision_date": "1947-10-29",
  "docket_number": "",
  "first_page": "106",
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  "last_updated": "2023-07-14T21:52:37.324265+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "W. L. SUTTON and Wife, ANNIE FIELDS SUTTON, v. MABEL B. QUINERLY, CORA A. CRADDOCK, JOHN HICKSON and Wife, THELMA JENKINS HICKSON; LOIS HICKSON SCOTT and Husband, K. D. SCOTT; WILLIAM F. HICKSON and Wife, MARGARET COUCH HICKSON; EDWARD B. HICKSON, ROBERT W. HICKSON, PHILIP H. HICKSON and Wife, WINAFRED ALLEN HICKSON; ANN HICKSON BOWEN and Husband, HARRY BOWEN; JAMES F. HICKSON and RICHARD C. HICKSON, and FRANCES FIELDS HOLLIDAY and Husband, JOSEPH W. HOLLIDAY."
    ],
    "opinions": [
      {
        "text": "Seawell, J.\nTbe proceeding under review was instituted before the Clerk of the Superior Court for a twofold purpose: To obtain a court construction of the will of W. 0. Fields, deceased, with respect to the devise in paragraph 5 thereof; and secure an order of sale for certain property therein described. The jurisdiction of the Clerk on matters of construction is not in question, since final action was in the Superior Court before the Judge.\nThe case went up to the Superior Court on an appeal from the Clerk, the objection being to his construction of the controversial paragraph hereafter quoted, and the judgment was there affirmed. It comes here on appeal by defendants other than Mabel E. Quinerly and Cora A. -Crad-dock, to whom the result was favorable, \u2014 the appellants directing their objection and exceptions solely to that part of the judgment adversely construing the devise under paragraph 5. As to the sale of the land as provided for in the judgment, all the parties are agreed and further reference thereto will not be necessary.\nThe paragraph of the will concerned with the controversy reads as follows:\n\u201cItem 5th: I loan to my daughter Annie C. Fields, the following lots and lands: The lot on which stands the \u2018Farmers 'Warehouse\u2019\u2014 corner of Heritage and Gordon Streets \u2014 being about 110 x 190 feet \u2014The lot on which Geo. Herring now lives adjoining the lot of H. D. Spain \u2014 (on Queen Street \u2014 )and the lot now occupied by J. A. Long \u2014 being about 55 or 60 feet front by 210 deep. The vacant lot next to the lot in which Tom Cox now lives on East side of Independence Street, between Washington and Lenoir Streets\u2014 being about 60 x 200 feet. The vacant square or lot on west side of W. & W. Rail Road, about 132 x 265 feet adjoining lots formerly beyonged to L. Harvey on the west & Mrs. Lillian Perry on the south and the W. & W. Rail Road on the east \u2014 The tract of land\u2014 about 350 acres in Nance Township \u2014 known as \u2018Moore Dale\u2019 on which Josh Mewborn now lives, during the term of her natural life and, after her death, if she shall have married and borne children (or a child) by such marriage, I give, devise and bequeath said lands \u2014 and lots to such child or children \u2014 and, \u25a0 if she does not marry, I give, devise and bequeath said lots and lands to her brother or sisters who may survive her to them, their heirs and assigns.\u201d\nSince the death of the testator, Annie Fields, holder of the life estate, married W. L. Sutton and these two are plaintiffs in the action. W. C. Fields, Jr., has since died.\nThe judgment challenged by the appellants concludes and declares that upon the death of Annie Fields Sutton, without children, the property devised in the quoted paragraph of the will will go under the terms thereof to Mrs. Quinerly or Mrs. Craddock, or both, according as either or both may survive the life tenant, and contingent upon such survival.\nThe appellants take a strict and literal view of the contingency as expressed in the will, \u201cIf she [Annie] does not marry,\u201d \u2014 contending that the sole contingency upon which the appellees could succeed to the remainder under the devise having already transpired adversely to their interest, W. 0. Fields died intestate and without further provision as to the said remainder and it must, therefore, descend under the statute to his heirs general, per stirpes.\nThe appellees contend that it was the purpose of the testator to devise the property to such of the brother and sisters who might survive Annie in case she had no children, to the exclusion of other heirs who might take as representatives of deceased ancestors; and to arrive at the true meaning it is necessary and competent to read into the will (simply as an explanatory device) after the words, \u201cdoes not marry,\u201d a clause reading, \u201cor leave a child or children surviving her,\u201d in which event the remainder would go to such member or members of the designated group as might survive Annie. Favoring that construction they call to our attention the presumption against intestacy, and particularly against partial intestacy. Ferguson v. Ferguson, 225 N. C., 375, 377, 378, 35 S. E. (2d), 231; Holland v. Smith, 224 N. C., 255, 257, 29 S. E. (2d), 888; Trust Co. v. Miller, 223 N. C., 1, 4, 25 S. E. (2d), 177; Coddington v. Stone, 217 N. C., 714, 720, 9 S. E. (2d), 420; Austin v. Austin, 160 N. C., 367, 369, 76 S. E., 272; 69 C. J., p. 91, see id., note 83, especially N. C. Citations on p. 93; Page on Wills, Sec. 926.\nThe presumption that the testator, having undertaken to make a will, intended to make a complete disposition of his property is of varying force, according to the circumstances of the particular case, and cannot, of course, justify the Court in making a will for the testator. Where the estate is large, the beneficiaries numerous, some in esse and others prospective, and the adjustments complex, we can conceive that the presumption may not be so impelling. But once the mind of the testator has penetrated to that point and has actually dealt with the item and chosen the objects of his bounty upon an expressed contingency, it would be singular if he should permit defeat of the testamentary disposition, abandon the pursuit, or leave the property undisposed of upon the failure of some other irrelevant contingency, also mentioned.\nOf what significance then is the expression \u201cif she shall not marry\u201d used in parallel construction with the expression \u201cif she shall have married and borne children (or a child) by such marriage,\u201d which immediately precedes it in the will? We think a reasonable construction would be that in the expression \u201cif she does not marry\u201d the testator intended to state the converse or reverse of the contingency he first stated in its entirety, substituting for the fuller expression the words \u201cif she shall not marry,\u201d which meant to him that she would not have children surviving ber if sbe did not marry. Sucb a construction brings into logical relation tbe provisions as to tbe disposition of tbis property and tbe reasonableness of tbe pbrase \u201cif sbe does not marry\u201d in tbis relation, wbicb would otherwise be wanting. It puts tbe appellees and tbe appellants on different sides of tbe same contingent event; tbe children of Annie to take if any survived ber; if sbe bad none surviving ber, sucb of tbe brother and sisters as might survive ber to take. Mrs. Quinerly and Mrs. Craddock now survive; but tbe roll is to be called at tbe death of Mrs. Sutton. We are confirmed in tbis opinion since otherwise, as above suggested, tbe mere fact of Annie\u2019s marriage or non-marriage would be an arbitrary contingency, no more related to tbe scheme of disposition and tbe natural provision and care for tbe chosen objects of testator\u2019s bounty than if tbe contingency bad been predicated on tbe event of tbe next Democratic Convention being held in Chicago or Byrd\u2019s safe return from tbe Antarctic. Desmartean v. Fortain, 326 Ill., 608, 158 N. E., 444. We cannot see bow tbe bare fact of Annie\u2019s marriage could have been important to tbe testator except as it bore on tbe possibility of having children who might survive ber.\nIn our opinion tbe court below correctly construed tbe devise, and tbe judgment is\nAffirmed.",
        "type": "majority",
        "author": "Seawell, J."
      }
    ],
    "attorneys": [
      "John G. Dawson for plaintiffs, appellees. \u2022",
      "Whitalcer & Jeffress for Cora A. Graddoch, defendant, appellee.",
      "William A. Allen, Jr., and Allen & Allen for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "W. L. SUTTON and Wife, ANNIE FIELDS SUTTON, v. MABEL B. QUINERLY, CORA A. CRADDOCK, JOHN HICKSON and Wife, THELMA JENKINS HICKSON; LOIS HICKSON SCOTT and Husband, K. D. SCOTT; WILLIAM F. HICKSON and Wife, MARGARET COUCH HICKSON; EDWARD B. HICKSON, ROBERT W. HICKSON, PHILIP H. HICKSON and Wife, WINAFRED ALLEN HICKSON; ANN HICKSON BOWEN and Husband, HARRY BOWEN; JAMES F. HICKSON and RICHARD C. HICKSON, and FRANCES FIELDS HOLLIDAY and Husband, JOSEPH W. HOLLIDAY.\n(Filed 29 October, 1947.)\n1.Wills \u00a7 33\u2014\nThe presumption against partial intestacy has varying force according to the circumstances of the particular case, but in no event can it justify the court in making a will for testator.\n2. Same\u2014\nThe presumption against partial intestacy applies with particular force as to lands which testator undertakes to dispose of and selects the objects of his bounty.\n3. Wills \u00a7 34\u2014\nTestator devised certain lands to his daughter for life with limitation over to her child or children if she should marry and bear children, but \u201cif she does not marry\u201d then to' her brother or sisters who may survive her. Held: The limitation over to brother and sisters of the first taker is not defeated by her subsequent marriage, it being the obvious intent of the testator that the limitation over to them should take effect in the event the first taker dies without child or-children of her marriage surviving her.\n4. Wills \u00a7 33c\u2014\nWhere there is devise to testator\u2019s daughter with limitation over to her children, and in the event of failure of such children .then to the brother and sisters of the first taker who- should survive her, those who take the contingent limitation over must be ascertained as of the date of the death of the first taker.\nDefeNdaNts\u2019 (except Mabel P. Quinerly and Cora A. Craddock) appeal from Hamilton, Special Judge, at September Term, 1947, of Lenoik.\nJohn G. Dawson for plaintiffs, appellees. \u2022\nWhitalcer & Jeffress for Cora A. Graddoch, defendant, appellee.\nWilliam A. Allen, Jr., and Allen & Allen for defendants, appellants."
  },
  "file_name": "0106-01",
  "first_page_order": 152,
  "last_page_order": 155
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