Opinion
(September Term, 1896.)
Will, Construction of — Devise — Latent Ambiguity — Intention of Testator.
1. A testator devised property to the use of "The Methodist Episcopal Church," and to a proceeding instituted by the executors to obtain the advice of the Court as to the application of the devise, the heirs of the testator and two religious organizations, the "Methodist Episcopal Church" and the "Methodist Episcopal Church, South," were made parties and answered, the heirs claiming the devise to be void for uncertainty, and each of the religious organizations claiming to be the intended devisee, it was error to reject testimony offered and tending to show (1) that the legal name of neither organization came within the very words of the will, one being "Trustees of the Methodist Episcopal Church" and the other the "Methodist Episcopal Church, South," and (2) that both organizations were commonly known as "The Methodist Episcopal Church."
2. In such case an issue should have been submitted as to which church the testator intended to devise the property by the use of words applying strictly to neither, but in common parlance to both, on which issue admissions or evidence that one church had numerous members and church buildings in the testator's county and the other none, would have been competent to show the testator's intention.
ACTION, tried at March Term, 1896, of DURHAM, before Coble, J., and a jury. The purpose of the action was to obtain instructions of the Court as to the application of the devise made in item 2 of the last will and testament of plaintiff's testator. The sixth paragraph of the petition was as follows:
"6. That the second item of their testator's will is as follows: `I give and devise to my beloved wife, Viney Ellis, all of my property, both personal and real, of every description, to have and to hold (234) the same during her natural life, at her death to the use of the Methodist Episcopal Church; if not built before my death to be built out of my estate, one-fourth of a mile east of my homestead, at some convenient place'; that Viney Ellis, wife of said testator, is dead, and no Methodist Episcopal Church was built, either by the testator or any other person or persons, near the testator's homestead during his lifetime, nor is there any congregation of any such Methodist Episcopal Church organized or formed, nor are there any trustees capable of holding property of any such Methodist Episcopal Church, and plaintiffs are not advised upon whom to make service of process in order to have before the Court such Methodist Episcopal Church, that the construction and validity of such devise may be determined; that there is and has been for many years, long prior to the date, 20 June, 1887, (on which said testator made his will as aforesaid), a Methodist Episcopal Church, duly organized, with a congregation and regular services, in about three miles of testator's homestead, which church was well known to the testator at the time he executed the will aforesaid, and plaintiffs are unable to determine from the will of their testator whether this be the church to which he referred or not, or whether the devise is valid and plaintiffs, as executors, are empowered to build a church as directed in the will."
After the jury were sworn and empaneled and the pleadings (239) read the Methodist Episcopal Church, South, tendered issues, and offered to introduce evidence tending to sustain the same.
(1) Is the name "Methodist Episcopal Church" a common or short name for "Methodist Episcopal Church, South," and by such name known?
(2) Did the testator, by the words in his will, "Methodist Episcopal Church," intend the "Methodist Episcopal Church, South?"
(3) Is the corporate name of the "Methodist Episcopal Church" the "Trustees of the Methodist Episcopal Church"?
The Court declined to submit any of the issues tendered, and the Methodist Episcopal Church, South, excepted.
At the hearing it was admitted that one organization in this State was the Methodist Episcopal Church, and the other in this State the Methodist Episcopal Church, South. But it was not admitted that the Methodist Episcopal Church was the corporate name. It was further admitted that there was no organized congregation of the Methodist Episcopal Church in this, Durham County, but it was admitted that there were organized congregations of Christians in North Carolina known as the Methodist Episcopal Church.
The Court construed the will and rendered judgment as follows:
"It is considered, adjudged and decreed by the Court as (240) follows:
"(1) That the said will of the said William Ellis, deceased, appearing from the pleadings to be his last will and testament, it is adjudged by the Court that the same is valid, and every part thereof is valid as hereinafter construed.
"(2) That the devise in the second item thereof is a good and valid devise to the `Methodist Episcopal Church,' and the proper legal construction of said devise is to the `Methodist Episcopal Church,' sometimes called "The Northern Methodist Church,' subject, as therein expressed, to the life estate in Viney Ellis, the testator's wife, in the testator's property therein devised and bequeathed.
"(3) That the true intent of the testator was, as therein expressed, that unless such `Methodist Episcopal Church should be built before his death, the same should be built out of his estate, one-fourth of a mile east of his homestead, at some convenient place.'
"(4) It being admitted that Viney Ellis, the life tenant, is dead, and it further being admitted that no such church as the testator contemplated has been built, and that in order to carry out this provision of the testator's will a sale of the testator's property, consisting of landed estate, is necessary in order to convert the same into money for the purpose of the erection of said church.
(241) "It is therefore considered and adjudged by the Court, and ordered and directed, that the executors select, reserve and set apart on the lands of the testator a suitable church site whereon to erect such church building, as near as may be one-fourth of a mile east of the testator's homestead,' (not less than half an acre,) and thereafter sell the balance of the estate, real and personal, belonging to the testator, and after the payment out of the proceeds of such sale of all the cost and expenses of such sale, and all unpaid debts of the testator, and the cost of this action, and the costs and expenses of their administration as provided by law, they shall apply and appropriate balance or surplus of the testator's estate to the use and benefit of the aforesaid `Methodist Episcopal Church' for the purpose aforesaid of building the church aforesaid. If the trustees or other duly constituted church authorities of said `Methodist Episcopal Church' shall desire to have the aforesaid surplus moneys turned over to them for the purpose aforesaid, then, upon their entering into bond with good and sufficient surety to be approved by the clerk of this court, conditioned for the faithful application of said funds, then and thereupon the said executors of William Ellis are hereby authorized and directed to turn over to said trustees or other constituted church authorities of said `Methodist Episcopal Church,' the aforesaid surplus moneys, taking their receipt therefor, and the same shall be a full and final discharge to said executors from all further liability or responsibility thereby."
All the parties except the Methodist Episcopal Church appealed.
Jas. S. Manning for appellants.
Guthrie Guthrie for appellee.
FAIRCLOTH, C. J., dissents, arguendo, in which FURCHES, J., concurs.
The devise was to the use of the "Methodist Episcopal Church." The administrator filed his petition asking to what Methodist Episcopal Church the devise should be applied, and (242) both organizations by which those words were used in their title were made parties and answered, and the heirs at law answered, claiming the devise to be void.
On the trial one of the defendant church organizations admitted that its strictly legal name was "Methodist Episcopal Church, South," the suffix "South" being added to the descriptive words in the will, but offered to prove that the legal name of the other organization was "Trustees of The Methodist Episcopal Church," with the prefix "Trustees of" added to the descriptive words in the will, and tendered an issue to that effect. The Court accepted the admission as to itself by the Southern Methodist Church, but refused to allow it to prove that the Northern Methodist Church was also differentiated from the words of the will by a prefix. This was error.
Again the M. E. Church, South, admitted that the Northern competitor was commonly known as "The Methodist Episcopal Church," without the prefix, but it offered to prove, and tendered an issue, that itself was also commonly known as "The Methodist Episcopal Church," without the suffix. Again the judge accepted the admission of the Southern Church against itself, but refused to permit it to prove that it was commonly known as "The Methodist Episcopal Church" as well as the Northern Church. This surely was error. It is true the admission cut in two, was that the competitor was the "Methodist Episcopal Church," but that said admission fairly meant only that it was commonly known as such, and not that such was its legal name, is shown by the statement in the same breath that such was not its corporate name, and the offer to prove, and tender of an issue, that the legal name had a prefix. Besides, even if the name of the Northern church had (243) come technically within the very words of the devise, if the other church, not technically but in common speech, was known by the very same words and abounded in that section, whereas the Northern church was entirely unknown there, this would leave the intention of the testator to a jury, since the real object is to ascertain his intention.
When evidence is improperly rejected it must be taken for the purpose of the argument that if admitted it would have proved what the party offering claimed it would prove. Therefore, we must take it that, if admitted, it would have proved:
(1st) That the legal name of neither organization came within the very words of the will, one being "Trustees of the Methodist Episcopal Church," and the other "Methodist Episcopal Church, South."
2d That both organizations were commonly known as "The Methodist Episcopal Church."
Upon the pleadings the defendant, the Southern church and the heirs at law, had the right to prove that state of facts if they could. Then the other issue offered would also have been competent as to which church the testator intended to devise by the use of words applying, in strict letter, to neither church, but in common parlance to both. On this issue the admission that one church had numerous members and church buildings in the testator's county, and that the other had no members in that county, and similar evidence for and against, would have been competent to show the testator's intention, and if this were not shown to the satisfaction of the jury the devise would lapse for the benefit of the heirs at law. In refusing to submit the issues and evidence offered there was
ERROR.