Holmes v. York

Clarkson, J.

The only question involved in this appeal is whether or not the devisor died intestate as to the lands in controversy? We think not.

L. Ellis Hayes, a witness for plaintiff was asked: “What did Miss L. C. Hodgson tell you, if anything, in regard to the five acres of land now in controversy? Defendants objected, objection sustained. Had the witness been allowed to answer the question, he would have stated that Miss L. 0. Hodgson told him she did not intend this land to go to O. C. York under her will.” This exception and assignments of error cannot be sustained.

The matter has been recently fully discussed and authorities cited in Reynolds v. Trust Co., 201 N. C., at p. 278 (quoting from Jarman on Wills) as follows: “As the law requires wills both of real and personal estate (with an inconsiderable exception) to be in writing, it cannot, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to, or explain the contents of such will; and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is the partial or total failure of the testator’s intended disposition; for it would have been of little avail to require that a will ab origine should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when the written instru *712 ment failed to make a full and explicit disclosure of bis scheme of disposition, its deficiencies might be supplied, or its inaccuracies corrected, from extrinsic sources. No principle connected with the law of wills is more firmly established or more familiar in its application than this; and it seems to have been acted upon by the judges, as well as of early as of later times, with a cordiality and steadiness which show how entirely it coincided with their own views.” Page on Wills (2d ed.), Yol. 2, sec. 1422, p. 2389.

Presumption is against partial intestacy, where person undertakes to make a will.

Kidder v. Bailey, 187 N. C., 505 ;

Gordon v. Ehringhaus, 190 N. C., 147 ;

McCullen v. Daughtry, 190 N. C., 215 ;

Mangum v. Trust Co., 195 N. C., 469.

Page on Wills (2d ed.), Vol. 1, sec. 815, at p. 1383-4, is in part: “Under ordinary circumstances a man makes a will to dispose of his entire estate, or, at least, of his estate as it exists at the time he makes his will. If, therefore, a will is susceptible of two constructions, by one of which testator disposes of the whole of his estate, and by the other of which he disposes of a j>&rt of his estate only, and dies intestate as to the remainder, the courts will prefer the construction by which the whole of the testator’s estate is disposed of, if this construction is reasonable and consistent with the general scope and provisions of the will. A construction which results in partial intestacy will not be used unless such intention appears clearly. It is said that the courts will prefer any reasonable construction, or any construction which does not do violence to testator’s language, to a construction which results in partial intestacy.”

The plaintiff in his brief cites no authorities to sustain his contention. The presumption is against partial intestacy. There is nothing in testatrix’s will to show the land in controversy was not a part of "all my real propertyThere is no residuary clause in the will. O. C. York seems to have been the special object of testatrix’s bounty, she bequeathed to him all her personal property of luhatsoever nature.

She conveyed her real estate as containing 26 acres more or less, and the land in controversy is 5 acres, adjoining the 26-acre tract of land on the south side. Then again, she says “all my real property.” To be sure she says who it adjoins, but this 5 acres is adjoining the 26 acres and it is well known, as a matter of common knowledge, that frequently adjoining land is purchased and tacked on the main tract. We think the “tail must go with the hide.” C. S., 4164, 4165;

Brown v. Hamilton, 135 N. C., 10 . The judgment of the court below is Affirmed.