1. Wills E a —
In the construction of wills there is a presumption against intestacy.
2. Same —
In the construction of a will the intention of the testator as expressed in the will, construing the will as an entirety, will be given effect.
3. Wills E b — Under the language of the will in this case, testator died intestate as to certain funds coming into hands of his executor.
The will in this case directed that the executor sell the testator's "Chattel property" and give the proceeds of the sale to testator's wife. There was no residuary clause in the will.
Held, the word "chattel" embraced only movable personal property, and as to certain funds coming into the hands of the executor the testator died intestate, and such funds should be distributed among his heirs at law according to the canons of descent.
CLARKSON, J.
The question presented: Did certain funds which came into the hands of the executors of W. H. Hill pass under his will to his widow, Minnie Bunch Hill, one of the appellants, or did the said W. H. Hill die intestate with reference thereto? We think the said W. H. Hill died intestate as to the funds in controversy.
The determination of the controversy depends upon the construction to be given the will of W. H. Hill, deceased, and particularly to Item 5 thereof, which is as follows: "All my chattel property shall be sold at public sale and after paying all debts, including burial expenses, and the proceeds from which I do hereby and bequeath to my wife, Minnie Bunch Hill."
There are certain well recognized rules of construction of wills. "It is an established rule of law that the presumption is, when a party makes a will that he disposes of his entire estate, and so intends. . . . The question is not what the testator intended to express, but what he actually expressed in his will, when all its provisions are considered and construed in their entirety. . . . Usually there is a residuary clause in a will which generally deals with all property not before disposed of in the will." Kidder v. Bailey, 187 N.C. 505, 507. In the will in the instant case there is no residuary clause.
In the present case, Item 5 deals with the proceeds arising from the sale of certain designated kind of property — chattel. What is the meaning of chattel? — "An article of personal property . . . movables which are called `chattels personal.'" Black's Law Dictionary, 2d ed., p. 194.
We think in the instant case "chattel property" would indicate that the testator by the use of the words meant movables, which is the generally accepted meaning of chattels. We think the language in the will in the present case is distinguishable from that in Hogan v. Hogan, 63 N.C. 222, and Harkness v. Harkey, 91 N.C. 195, chiefly relied on by appellants.
In the Hogan case, supra, there was a residuary clause. After several specific bequests, there is the following: "And should there be anything at my death undivided, it is my wish that it be sold and equally divided among my four sons, after paying my funeral expenses and all just debts."
In the Harkness case, supra, there was a residuary clause "that the remainder of my property be sold and equally divided," etc. In these two cases it is clear that the testator did not intend to die intestate as to anything. The language in these cases is broad and comprehensive in its meaning, and no purpose to use same in a restricted sense, as in the instant case. For the reasons given, the judgment of the court below is
Affirmed.