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First Union National Bank of North Carolina v. Baker
Filed: October 16, 1979.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, EXECUTOR UNDER THE WILL OF HOWARD A. MARVILL
VIRGINIA BAKER, MIRIAM SIMPSON AND LILLIAN B. KASPER
Appeal by defendant Virginia Baker from Lewis, Judge. Judgment entered 7 December 1978 in Superior Court, Buncombe County. Heard in the Court of Appeals 21 September 1979.
Webb, Judge. Judges Arnold and Wells concur.
We affirm the judgment of the superior court. In construing a will it is elementary that the intent of the testator is to be determined by examining the entire will in light of all the surrounding circumstances known to the testator and the intent is to be gathered from the four corners of the will. Wilson v. Church, 284 N.C. 284, 200 S.E.2d 769 (1973) and McWirter v. Downs, 8 N.C. App. 50, 173 S.E.2d 587 (1970). This case turns upon the meaning of the words "Cash, travelers checks, watches and jewelry in my possession." The words are found in a section of the will which disposed of household and personal effects. It also refers to real property, but the deceased had no real property. All the other items disposed of by this section would be found on the premises of deceased or in his safety deposit box. We infer from this that the phrase "in my possession" referred to articles on his premises or in his safety deposit box. This would not include money in a bank or savings and loan association.
Appellant has cited several cases from other jurisdictions which interpret the words "cash" or "cash on hand" to include money on deposit with a bank. See In re Feist's Will, 170 Misc. 497, 10 N.Y.S. 2d 506 (1939); Re Banfield's Estate, 137 Or. 256, 3 P.
2d 116 (1931); Re Estate of Morris, 15 Ariz. App. 378, 488 P. 2d 1015 (1971). In Feist the term "cash on hand" was used. The Court held this included money in a savings account. If it had not used this interpretation, one of the beneficiaries under the will would have received virtually nothing. In Banfield the testatrix bequeathed all "cash on hand" to her husband. This was held to include money in the bank. In Morris if the word "cash" had not been interpreted to include money deposited in the bank, the testatrix would have died intestate as to this portion of her estate. We do not find these cases persuasive. Our Supreme Court has said: "little or no aid can be derived by a court in construing a will from prior decisions in other will cases." Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960).
We hold that in this case Judge Lewis properly construed the will of Howard A. Marvill.
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