
    IN RE WILL OF H. W. WOLFE.
    (Filed 8 June, 1923.)
    1. Wills — Revocation—Presumptions.
    A will may be revoked by a subsequent instrument executed solely for that purpose, or by a subsequent will containing a revoking clause or provisions inconsistent with those of the previous will, or by any other methods prescribed by law; but the mere fact that a second will was made, although it purports to be the last, does not necessarily create a presumption that it revokes or is inconsistent with one of a prior date.
    2. Wills — Interpretation.
    In the construction of wills the primary purpose is to ascertain and give effect to the testator’s intention as expressed by the w.ords employed, and if the language is free from ambiguity and doubt, and expresses plainly, clearly, and distinctly the maker’s intention, there is no occasion to resort to other means of interpretation.
    3. Same — “Effects”—Personal Property.
    While the word “effects” used in the disposition of personal property by will may include land when used as referring to antecedent words which describes real estate, or when used in written instruments in which the usual technical terms are not controlling, when used in a general or unlimited sense and unaffected by the context, it signifies all that is embraced in the words “personal property,” exclusive of real estate.
    4. Wills — Intestacy—Presumptions.
    The presumption that a testator intended to dispose of all of his estate will not prevail when it is clearly made to appear that he had not included under the written terms of his will certain of his property of which he had died seized and possessed.
    5. Same — Revocation.
    A testator devised a certain part of his lands to L., and by a later will gave his effects to his brothers and sisters: Held, the two wills were not inconsistent, that the later will did not revoke the former, and that he died intestate as to a part of his lands.
    Appeal by proponents from Brock, J., at August Term, 1922, of SubRT.
    H. W. Wolfe, tbe testator, died at tbe age of' 67, leaving personal property of tbe value of about $4,000, and more than 500 acres of land. He was never married and lived alone; bis next of kin were bis brothers and sisters. K. F. Huffman bad been bis miller and tenant for about 16 years, and lived witb bis family in a bouse near tbe mill site, 2 or 3 miles distant from tbe testator. Lillie Huffman was bis daughter, and at tbe date of tbe paper offered for probate was about 15 or 16 years of age.
    Tbe propounder offered tbe following instrument for probate: “I, H. W. Wolfe, ... do make and declare tbe following to be my last will and testament: ‘Item 1: I will and bequeath to Miss Mary Lillie Luffman a tract of land near Roaring Gap Postoffi.ee, on State Road and Southfork, adjoining the lands of J. M. Royal and others, the land' bought by me from H; D. Woodruff, and I will that that land in case of my death go into her possession without any further writing whatever. Witness my hand and seal, this 31 July, 1911.
    “H. W. Wolfe, [seal.]
    His
    “T. W. (X) LuffmaN,
    Mark
    His
    “IL F. (X) Luffmah.”
    Mark
    The clerk declined to probate it on the ground that another paper-writing, bearing date of 14 August, 1911, had already been probated as the last will and testament of H. W. Wolfe. An appeal was taken to the Superior Court, and at the trial evidence was offered tending to show the due execution of the instrument above set out. The caveators introduced Will Book No. 8, containing the record of the following paper-writing only probated: “I, H. W. Wolfe, ... do make and declare this to be my last will and testament: Item: I will and bequeath all my effects to my brothers and sisters, to be divided equally among them. Witness my hand and seal, this 14 August, 1911.
    “H. W. Wolfe, [seal]
    “R. W. Habbis,
    “C. L. Habéis.”
    The propounder tendered the following issue: “Is the paper-writing offered for probate of date 31 July, 1911, the last will and testament of H. W. Wolfe, or any part of his last will and testament?”
    His Honor declined this issue and submitted the following:
    “1. Is the paper-writing of date 14 August, 1911, probated and on record in the office of the clerk of the Superior Court of Surry County, Book of Wills No. 8, p. 50, the last will and testament of H. W. Wolfe, deceased ?
    “2. Is the paper-writing of 31 July, 1911, offered for probate by Lillie Luffman, the last will and testament of H. W. Wolfe, deceased?”
    At the close of the evidence the trial judge instructed the jury upon all the evidence to answer the first issue “Yes,” and the second “No.” Judgment for the respondents. The propounder excepted and appealed.
    
      Folger, -Jaclcson & Folger for propounder.
    
    
      W. L. Reece, 8. Porter Graves, amd William Graves for respondents.
    
   Adahs, J.

Tbe presiding judge, we presume, based bis peremptory-instruction on tbe legal inference tbat tbe earlier paper-writing was revoked by tbe one of later date, for .it is not at all probable tbat it was bis purpose to withdraw from tbe jury any evidence tending to, show tbe erasure of tbe original signature to tbe older instrument; We are therefore called upon to decide whether tbe instruction given is a necessary deduction from tbe facts disclosed by tbe record.

A will may be revoked by a subsequent instrument executed solely for tbat purpose, or by a subsequent will containing a revoking clause or provisions inconsistent with those of tbe previous will, or by any of tbe other methods prescribed by law, but tbe mere fact tbat a second will was made, although it purports to be tbe last, does not create a presumption that it revokes or is inconsistent with one. of prior date. C. S., 4133 et seq.; Gardner on Wills, 266, 271; 1 Redfield on Wills, 350; 1 Jarman on Wills, 186 et seq.; In re Venable’s Will, 127 N. C., 345; Fleming v. Fleming, 63 N. C., 209.

Tbe propounder admits tbat tbe instrument dated 14 August (herein for convenience referred to as tbe second will) is a part of tbe maker’s testamentary disposition, but insists tbat it does not affect tbe validity of tbe instrument dated 31 July, herein designated as tbe first will. By reason of this admission, tbe appeal presents tbe single question whether tbe two wills are so inconsistent tbat they cannot stand together, and whether tbe first is revoked by tbe second.

It has often been held tbat in tbe construction of wills tbe primary purpose is to ascertain and give effect to tbe testator’s intention as expressed in tbe words employed, and if tbe language is free from ambiguity and doubt, and expresses plainly, clearly, and distinctly tbe maker’s intention, there is no occasion to resort to other means of interpretation. Black’s Inter-Laws, 37; Kearney v. Vann, 154 N. C., 315; Dicks v. Young, 181 N. C., 448; Pilley v. Sullivan, 182 N. C., 493; McIver v. McKinney, 184 N. C., 393; Ledbetter v. Culberson, 184 N. C., 488.

In the instant case, the language being clear and unequivocal, the chief controversy between the parties involves the meaning of the words “all my effects” as used in the second will. the propounder contends tbat they include only personal property; the respondents insist tbat the term embraces real as well as personal property, and tbat the second will revokes the first, the two being necessarily inconsistent.

The observation has been made tbat the individual cases construing “effects” are of value only for the purpose of illustration, each case being a law unto itself; but there seems to be a practical unanimity of judicial decision, with the exception of certain English cases, tbat the word “effects” used simyliciter or in a general or unlimited sense and unaffected by tbe context, signifies all tbat is embraced in tbe words “personal property,” but is not sufficiently comprehensive to include real estate. “Effects,” however, may include land when'used as referring to antecedent words which describe real estate, or when used in written instruments in which the usual technical terms are not controlling, as in University v. Miller, 14 N. C., 188; Graves v. Howard, 56 N. C., 302, and Page v. Foust, 89 N. C., 447. A discussion of these questions with an exhaustive citation of authorities may be found in the following cases with the subjoined explanatory notes: Andrews v. Applegate, 12 L. R. A. (N. S.), 661; Dickson v. Dickson, L. R. A., 1918 F, 765; In re Molson, 18 Ann. Gas., 279; Gardner v. McNeal, Ann. Ca., 1914 A, 119.

In the second will there are no words which ex vi termini import a disposition of real property; there is no residuary clause or clause of revocation; and in these circumstances, as the courts do not favor the revocation of wills by implication, there appears to be no sound reason for holding that the two instruments are so inconsistent as to be incapable of standing together, and that the first is necessarily revoked by the second. It is true there is a presumption that the testator intended to dispose of all his estate, and under our construction the testator died intestate as to the land not devised to Mary Lillie Luffman, but as said in Andrews v. Applegate, supra, such presumption, however strong, will not justify or warrant a construction incorporating in the second will any kind of property which cannot be brought within its terms.

Having admitted that the second will is a valid testamentary disposition of the property therein described, the propounder is entitled to have the jury determine whether the instrument dated 31 July, 1911, is any part of. the maker’s will. The judgment and verdict are therefore set aside and a new trial is awarded.

New trial.  