# Hubbard v. Wiggins

> Supreme Court of North Carolina · May 5, 1954 · 240 N.C. 197

URL: https://www.frixlaw.com/law-library/cases/9844804

## Case

- **Full name:** LIZZIE B. HUBBARD, Executrix of the Estate of CHRISTIAN GAY PATE, Deceased, v. JAMES A. WIGGINS, MOLLIE LOUISE WIGGINS, JAMES WILHELM WIGGINS, JOHN DEWEY WIGGINS, JOHN DEWEY WIGGINS, JR., JAMES HAMPTON WIGGINS, SAMUEL PAUL WIGGINS, STANLEY PAUL WIGGINS, JOHN WILLIAM ARCHER, MARY FRANCES ARCHER, JOHN WILLIAM ARCHER, JR., ROBERT WALTER ARCHER, CAROLYN WHITE ARCHER, BARBARA JEAN ARCHER, JESSE WAYNE ARCHER, J. FORREST ARCHER, DAISY ARCHER BRITT, ROBERT CLINTON ARCHER, ROBERT CLINTON ARCHER, JR., DEBORAH LOUISE ARCHER, MARY ALICE ARCHER EDWARDS, PEGGY ANN ARCHER, J. SAMUEL HUBBARD, JUANITA HUBBARD DAVIS, H. COMPTON GAY, FRANK H. GAY, FRANKIE SUE GAY, HARVEY H. GAY, VIRGINIA BELLE GAY WHITE, BARBARA LEE WHITE, BARBARA ANN GAY CLAYTON, ALMA CHRISTINE GAY KYTE, WILLIAM C. GAY, JR., ELIZABETH BLANCHE GAY, DEWEY ELIZABETH GAY TAYLOR, DEWEY GAY HARRISON, ERNEST WOOD TAYLOR, JR., NELLIE GREENE GAY, GERTRUDE GAY BRYANT, HARVEY H. GAY, JR., NELL GAY WHITE, DOROTHY GAY WHITE WATKINS, JOHN E. WHITE, LILAR BIRDSONG VICK, OMA LEE VICK HARRIS, JAMES BATTE HARRIS, SANDRA DIANNE HARRIS, JAMES VICK, JUDITH DEE VICK, JOYCE ANN VICK, NELL VICK NEAL, ELLEN LEE ADAMS, PATRICIA ANN NEAL, MAY VICK SHIELDS, JEAN MARIE SHIELDS, LINDA TART SHIELDS, JAMES ANDERSON SHIELDS, ELIZABETH ANN SHIELDS, LAURICE VICK ALLEN, MINA VICK LIGGAN, ELIZABETH BIRDSONG HUBBARD, HOWARD STOCKWELL, GLORIA STOCKWELL FAISON, ELIZABETH STOCKWELL, SHIRLEY STOCKWELL, HOWARD STOCKWELL, JR.; MASONIC AND EASTERN STAR HOME, INC., a North Carolina Corporation, of Greensboro, North Carolina, and J. CRAWFORD BIGGS, JOHN N. DUNCAN, C. C. CUNNINGHAM, GROVER L. DILLON, B. TROY FERGUSON, L. B. FLOURNOY, H. O. LINEBERGER and A. EUGENE SPIVEY, Trustees of EDENTON STREET METHODIST CHURCH OF RALEIGH, NORTH CAROLINA, and All Other Persons, Known or Unknown, in Being or Not in Being, and Not Specifically Named Herein, Who Have or May Have or Claim an Interest in the Estate of CHRISTIAN GAY PATE, Deceased
- **Court:** Supreme Court of North Carolina
- **Decided:** May 5, 1954
- **Citations:** 240 N.C. 197; 81 S.E.2d 630; 1954 N.C. LEXIS 677
- **Precedential status:** Published
- **Opinion:** Dissent by EbviN
- **Judges:** Denny, Ebvin, Baenhill, Winborne
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9844804

## Opinion text

EbviN, J.,
dissenting: While sbe dwelt among tbe living, tbe testatrix purchased three United States Savings Bonds, Series D, of tbe value of $100.00 each, which were payable to herself or ber nephew Sam Hubbard, and six United States Savings Bonds, Series D, of tbe value of $1,000.00 each, which were payable to herself alone. Sbe placed tbe three $100.00 bonds in an unmarked envelope. Sbe put tbe six $1,000.00 bonds in another envelope bearing ber name and the notation “personal account.”
Tbe testatrix bad tbe legal power to dispose of tbe six $1,000.00 bonds by will. It was otherwise with respect to tbe three $100.00 bonds. Under tbe applicable Federal regulations, tbe complete title to tbe three $100.00 bonds automatically passed to Sam Hubbard by right of survivorship when tbe testatrix predeceased him without having cashed them.
When sbe executed ber will, tbe testatrix made two references to bonds. Tbe first appears in lines 20 and 21, and is couched in tbis language: “Sam Hubbard is to have tbe bonds & on Hundred Dollars.” Tbe second appears in lines 53 and 54, and is expressed in tbis way: “I want fifteen hundred dollars in Savings Bonds for flowers for tbe graves.” Tbe will does not contain a residuary clause. Tbe United States Savings Bonds were found in their enclosing envelopes after tbe death of tbe testatrix, who did not have any claim to any other bonds.
Tbe appeal raises tbis solitary question for decision: Did tbe testatrix bequeath tbe six $1,000.00 bonds to Sam Hubbard?
*211 We must look to tbe will for tbe answer to tbis question. “In construing a will, tbe court seeks to ascertain and carry into effect tbe expressed intent of tbe testator, i.e., tbe intention wbicb tbe will itself, either explicitly or implicitly, declares. Where tbe language employed by the testator is plain and its import is obvious, tbe judicial chore is light work; for, in such event, the words of tbe testator must be taken to mean exactly what they say. But where tbe language in the will does not clearly express tbe testator’s purpose, or when bis intention is obscure because of tbe use of inconsistent clauses or words, tbe court finds itself confronted by a perplexing task. In such case, tbe court calls to its aid more or less arbitrary canons or rules of testamentary construction designed by tbe law to resolve any doubts in tbe language of tbe testator in favor of interpretations wbicb tbe law deems desirable.” Elmore v. Austin, 232 N.C. 13 , 59 S.E. 2d 205 .
Tbe attorneys for all tbe parties and tbe majority of tbis Court accept as valid tbe determination of tbe presiding judge that tbe words “I want fifteen hundred dollars in Savings Bonds for flowers to tbe graves” are meaningless and void. I have no quarrel with tbis bolding.
' With the second testamentary reference to bonds thus removed, there is virtually no room left for construction. Tbis is true because tbe testatrix has expressed in plain language of obvious import her unmistakable intention to bequeath to Sam Hubbard tbe bonds over wbicb she bad tbe power of testamentary disposition.
To be sure, it may be argued that tbe broad and unrestricted words “Sam Hubbard is to have tbe bonds” are susceptible of these two constructions: First, tbe testatrix intended to give Sam Hubbard all “tbe bonds,” that is to say, the three $100.00 bonds as well as tbe six $1,000.00 bonds; Second, tbe testatrix intended to give Sam Hubbard “tbe bonds” over wbicb she bad the power of testamentary disposition, that is to say, tbe six $1,000.00 bonds. Her action in segregating tbe bonds and labeling tbe envelope containing the six $1,000.00 bonds as her “personal account” indicates that she knew tbe legal powers she bad in reference to tbe bonds and lends support to tbe second of these constructions. To belabor tbis point, however, on this phase of tbe appeal would be as absurd an undertaking as to debate tbe medieval query “bow many angels can dance on the point of a very fine needle without jostling each other.” Since tbe testatrix was without legal power to dispose of tbe three $100.00 bonds by will, Sam Hubbard would receive exactly tbe same legacy, i.e., tbe six $1,000.00 bonds, under either construction. Benton v. Alexander, 224 N.C. 800 , 32 S.E. 2d 584 , 156 A.L.R. 814 .
For these reasons, this Court ought to make tbis determination: When tbe testatrix said “Sam Hubbard is to have tbe bonds & on Hundred Dollars,” she gave him tbe six $1,000.00 bonds and $100.00.
*212 My brethren disagree. They adjudge that when the testatrix said “Sam Hubbard is to have the bonds & on Hundred Dollars,” she gave him $100.00, but no bonds. They adjudge, moreover, that the testatrix died intestate as to these bonds in spite of her positive declaration that “Sam Hubbard is to have the bonds.”
These adjudications rest on a premise, which cannot be harmonized with the language of the will or the facts dehors that instrument, and a conclusion which cannot be reconciled with the premise.
This is the premise: "When the words “Sam Hubbard is to have the bonds” are read in the light of other provisions of the will and “the fact that testatrix held at her death two sets of bonds,” it appears' that the testatrix was ignorant of the difference in the state of her titles to the two sets of bonds and believed that she had full legal power to dispose of both sets of bonds by will. As a consequence, the words “Sam Hubbard is to have the bonds” are so ambiguous as to be susceptible of these two constructions : First, the testatrix intended to give Sam Hubbard the three $100.00 bonds and no others; second, the testatrix intended to give Sam Hubbard the six $1,000.00 bonds and no others. This ambiguity must be removed by construction.
This is the conclusion: When the words “Sam Hubbard is to have the bonds” are construed in the light of other provisions of the will and “the fact that testatrix held at her death two sets of bonds,” it appears that it was the intention of the testatrix to give Sam Hubbard the three $100.00 bonds which she could not give and to withhold from him the six $1,000.00 bonds which she could give. Since the testatrix had no legal power to bequeath the three $100.00 bonds, the testamentary provision “Sam Hubbard is to have the bonds” has no more legal significance than the whistling of the wind through the willows. And since the will contains no residuary clause, the testatrix died intestate as to the bonds in controversy.
Every jot and every tittle in the reasoning of my brethren rests in final analysis on their notion that the testatrix was ignorant of the difference in the state of her titles to the two sets of bonds and believed that she had full legal power to dispose of both sets of bonds by will. Their decision would be without validity even if support for this notion could be found in “provisions of the will and the fact that testatrix held at her death two sets of bonds.” If the testatrix incorporated the words “Sam Hubbard is to have the bonds” in her will in the belief that she had full legal power to dispose of both sets of bonds by will, the conclusion is inescapable and unassailable that she intended to give Sam Hubbard both sets of bonds and her will was effectual to transfer to him the six $1,000.00 bonds over which she had the power of testamentary disposition. The supposed ignorance and the supposed belief of the testatrix do not afford an iota of support for the idea that she intended to divorce one set of bonds from the other.
*213 Tbe basic notion of my brethren and the reasoning based on it are in irreconcilable conflict with the presumption that the testatrix knew her own titles and the powers she had in reference to the property held by her. Funk v. Eggleston, 92 Ill. 515 , 34 Am. R. 136; Re McNulta, 168 Wash. 397 , 12 P. 2d 389 ; 57 Am. Jur., Wills, section 1163. My brethren do not specify anything in “the fact that testatrix held at her death two sets of bonds” having anjr logical tendency to rebut this presumption or to sustain their position. I respectfully submit that they cannot do so. When she segregated the bonds, noted on one envelope that its contents belonged to her “personal account,” and refrained from making any comparable notation on the other envelope, the testatrix demonstrated that she knew the ‘difference in the state of her titles to the two sets of bonds and that she knew her .power of testamentary disposition was limited to the six $1,000.00 bonds belonging to her “personal account.”
My brethren assign' two reasons for their assertions that their premise and their conclusion And support in provisions of the will. The first is that Sam Hubbard would receive a “very large .-and disproportionate bequest” if the-testatrix’s words “Sam Hubbard is to have the bonds” are construed to give him the bonds which she had the legal power to' bequeath to him. This reason is wholly unsatisfying. It rests on conjecture. As the majority opinion points out, “the court was not given any information as to the extent -of the testatrix’s estate.” The first reason would be destitute of validity, however, even if it were based on fact. Since the law permitted her to do .with her own as she' pleased, the testatrix had an absolute legal right to make Sam Hubbard a.“very large and disproportionate bequest.” The will negates any theory that the testatrix had the intention to distribute her property, among the natural objects of her bounty with any substantial degree of equality. She gave various persons varying gifts of varying values. She cut off her brothers with $5.00 apiece. She disinherited some of the natural objects of her bounty altogether. I fear that the first reason is simply symptomatic of the unconscious succumbing of the majority of the court to a temptation which lies in constant wait for judges — the temptation to make for a decedent in the name of construction a will which the judges deem to be more equitable than the will the .decedent has made for himself.
The second reason advanced by my brethren for their assertion that their premise and their conclusion find support in the provisions of the will is bottomed on this second reference to the bonds: “I want fifteen hundred, dollars in Savings Bonds for flowers to the graves.” The presiding judge held' these words void for vagueness, and my brethren affirm this holding. Yet‘they declare these meaningless words clearly indicate that the testatrix did not intend to bequeath the six $1,000.00 bonds to Sam Hubbard. I am unable to give assent to this reason. When she *214 inserted these words in her will, the testatrix merely exercised the privilege of changing her mind, and attempted to withdraw from her prior bequest to Sam Hubbard “fifteen hundred dollars in Savings Bonds for flowers to the graves.” And this is precisely what she would have done if she had expressed her apparent purpose in words of legal validity. 57 Am. Jur., Wills, section 1128. My brethren do not reveal any reason why the law should give to void words a power which it denies to valid ones. I can think of none. Consequently I favor abiding by this well settled doctrine of the law of wills: “A clear gift by an earlier provision will not be modified or qualified by a later obscure or ambiguous provision.” 69 C.J., Wills, section 1158.
For the reasons given, the premise and the conclusion of my brethren cannot be harmonized with the language of the will or the facts dehors that instrument.
When the premise of the majority is reduced to ultimate terms, it comes to this: The words “Sam Hubbard is to have the bonds” are so ambiguous as to be susceptible of these two constructions: First, the testatrix intended to give Sam Hubbard the three $100.00 bonds, and no others; second, the testatrix intended to give Sam Hubbard the six $1,000.00 bonds, and no others.
The conclusion that the testatrix intended to give Sam Hubbard the three $100.00 bonds she could not give and to withhold from him the six $1,000.00 bonds she could give cannot be reconciled with this premise. This is true because the conclusion runs counter to the canons or rules of testamentary construction which an ambiguity of the nature alleged calls into play.
These canons or rules are as follows:
1. The presumption is that the testator intended to dispose of property which the law permitted him to dispose of by will. Bank v. Misenheimer, 211 N.C. 519 , 191 S.E. 14 , 110 A.L.R. 1310 ; Gano v. Gano, 239 Ill. 539 , 88 N.E. 146 , 22 L.R.A. (N.S.) 450; Collins v. Capps, 235 Ill. 560 , 85 N.E. 934 , 126 Am. S. R. 232 ; Wilkison v. Wilkison, 130 Kan. 424 , 286 P. 252 ; Hood v. Nicol, 236 Ky. 779 , 34 S.W. 2d 429 ; Lane v. Gess’ Admr., 223 Ky. 448 , 3 S.W. 2d 1076 ; Lasater v. Cumberland Coal Corp., 26 Tenn. App. 277 , 171 S.W. 2d 407 ; Ottenhouse v. Paysinger (Tex. Civ. App.), 244 S.W. 2d 714 ; Edds v. Edds (Tex. Civ. App.), 282 S.W. 638 ; In re McNulta’s Estate, supra; 57 Am. Jur., Wills, section 1163; 69 C. J., Wills, section 1376. The reverse is also true. The presumption is that the testator did not intend to dispose of property over which he had no power of testamentary disposition. Cox v. George (Tex. Civ. App.), 184 S.W. 326 ; Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 990 , 30 L.R.A. (N.S.) 644; 54 Am. Jur., Wills, section 1163; 69 C.J., Wills, section 1376. As a consequence, a will is not to be given the construction that *215 the testator intended to dispose of property not devisable or bequeathable by him, unless its language is fairly susceptible of no other construction. Bank v. Misenheimer, supra; Hood v. Nicol, supra; Long v. Long (Tex. Civ. App.), 252 S.W. 2d 235 ; Ottenhouse v. Paysinger, supra; Ford v. Bachman (Tex. Civ. App.), 203 S.W. 2d 630 ; Cheatham v. Mann (Tex. Civ. App.), 133 S.W. 2d 264 ; Sailer v. Furche (Tex. Civ. App.), 22 S.W. 2d 1065 .
2. When a person dies testate, it will be presumed that he intended to' dispose of all his property by his will, and that he did so dispose of it. As a consequence, any construction of a will which will result in partial intestacy is to be avoided, unless the language of the will compels it. Armstrong v. Armstrong, 235 N.C. 733 , 71 S.E. 2d 119 ; Trust Co. v. Waddell, 234 N.C. 454 , 67 S.E. 2d 651 ; Renn v. Williams, 233 N.C. 490 , 64 S.E. 2d 437 ; Jones v. Jones, 227 N.C. 424 , 42 S.E. 2d 620 ; Ferguson v. Ferguson, 225 N.C. 375 , 35 S.E. 2d 231 ; Holland v. Smith, 224 N.C. 255 , 29 S.E. 2d 888 ; McWilliams v. McWilliams, 223 N.C. 857 , 26 S.E. 2d 901 ; Morris v. Waggoner, 209 N.C. 183 , 183 S.E. 353 ; Case v. Biberstein, 207 N.C. 514 , 177 S.E. 802 ; McIver v. McKinney, 184 N.C. 393 , 114 S.E. 399 ; Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141 , Ann. Cas. 1917E, 72; Ireland v. Foust, 56 N.C. 498 ; Foust v. Ireland, 46 N.C. 184 ; Boyd v. Latham, 44 N.C. 365 ; Reeves v. Reeves, 16 N.C. 386 .
3. Every part of a will is to be considered in its construction, and none of its words are to be cast aside as idle jargon, if any meaning can be put upon them. Holland v. Smith, supra; Williams v. Rand, 223 N.C. 734 , 28 S.E. 2d 247 ; Lee v. Lee, 216 N.C. 349 , 4 S.E. 2d 880 ; Edens v. Williams, 7 N.C. 27 . To this end, clauses susceptible of inconsistent constructions are to be reconciled, if this may fairly be done. Voncannon v. Hudson Belk Co., 236 N.C. 709 , 73 S.E. 2d 875 ; Bank v. Brawley, 231 N.C. 687 , 58 S.E. 2d 706 ; Holland v. Smith, supra; Williams v. Rand, 223 N.C. 734 , 28 S.E. 2d 247 ; Richardson v. Cheek, 212 N.C. 510 , 193 S.E. 705 ; Westfeldt v. Reynolds, 191 N.C. 802 , 133 S.E. 168 .
My brethren conclude that the testatrix intended to dispose of the three bonds not bequeathable by her and to die intestate as to the six bonds over which she had the power of testamentary disposition, although the language of her will is certainly susceptible of contrary interpretations. They east aside as idle jargon the testatrix’s words “Sam Hubbard is to have the bonds,” although this meaning can be put on those words: The testatrix intended to give Sam Hubbard the bonds which the law permitted her to dispose of by her will.
BaeNhill, C. J., and WiNBORNE, J., concur in dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9844804. Public record. Not legal advice.