Howell v. Gentry

174 S.E.2d 61 (1970)

8 N.C. App. 145

James S. HOWELL, Executor of the Estate of Harvey McDaris, Deceased, and Helen McDaris v. Gerald Warren GENTRY.

No. 7028SC169.

Court of Appeals of North Carolina.

May 27, 1970.

*65 Bennett, Kelly & Long, by E. Glenn Kelly, Asheville, for plaintiffs appellees.

Peter L. Roda, Asheville, for defendant appellant.

MORRIS, Judge.

The only question to be determined in this case is whether Helen McDaris takes a fee simple interest, excluding Gerald Warren Gentry, or merely a life estate in the property, passing under the terms of the will, with Gerald Warren Gentry taking a fee simple as remainderman. It is axiomatic that the ultimate construction of a will must be founded on what the court believes the testator's intent to have been at the time the will was written. There are, of course, many other elements to be considered when construing a will. In the absence of some expression to show the testator meant otherwise, technical words used in a will will be given their technical meaning. McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857 (1965). The fact that an attorney drafted the will may be considered. Clark v. Conner, 253 N.C. 515, 117 S.E.2d 465 (1960). The testator's intent must be determined from the entire instrument so as to harmonize, if possible, provisions which might otherwise be inconsistent. Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970). Each clause, phrase or word should be given a meaning in accord with the general purpose of the will. Gatling v. Gatling, 239 N.C. 215, 79 S.E.2d 466 (1953). If there is a particular and a general or paramount intent apparent in the same will, the general intent must prevail. Ross v. Toms, 15 N.C. 376 (1833). A statement of Parker, J. (later C.J.), in Gatling v. Gatling, supra, seems particularly appropriate:

"Every will is so much a thing of itself, and generally so unlike other wills, that it must be construed by itself as containing its own law, and upon considerations pertaining to its own peculiar terms. Probing the minds of persons long dead as to what they meant by words used when they walked this earth in the flesh is, at best, perilous labor."

Applying the well-known rules of construction to the will now before us, we are of the opinion that the construction placed upon the will by the trial court is correct.

There can be no doubt the paramount intent of the testator was that his estate have the tax advantage of the marital deduction. This intent is unequivocally expressed in Article VIII when the testator says "It is my intention that the bequest to my wife, hereinafter set forth, shall qualify for the marital deduction. My Executor shall have no power or authority to exercise any discretionary power in any manner which would disqualify such bequest for the marital deduction; and, accordingly, all other provisions of this Will shall be subordinated to this requirement." (Emphasis supplied.) This intent was reiterated in Article XII: "The assets I have heretofore devised to my wife represent in excess of fifty (50) per cent (%) of my Estate; and, it is my intention that *66 such bequest to her shall always qualify for the marital deduction." (Emphasis supplied.)

The complaint filed in this action alleges, and the allegation is admitted by the answer, that the will was drafted by a licensed practicing attorney.

Technical words are presumed to have been used in a technical sense. McCain v. Womble, supra. The words "marital deduction" are technical words and have a recognized particular meaning. In these times of tax consciousness, it would almost defy credulity to say that the attorney and the testator were unaware of the requirements in devising property to qualify for the marital deduction. To qualify, property must be includable in the decedent's gross estate, must be a deductible interest, must pass to the surviving spouse, and must not be disqualified as a nondeductible terminable interest. Internal Revenue Code, 26 U.S.C.A. § 2056. A terminable interest is defined as an interest which will terminate or fail after a certain period of time, the happening of some contingency, or the failure of some event to occur. I.R.S., Reg. § 20.2056(b)-1(b). Obviously a life estate would come within the terminable interest definition, and this is specifically stated in both the Code and the Regulations. Nor was any attempt made to bring the devise to the wife within any of the exceptions to the terminable interest rule. Bolstering the argument that the primary intent of the testator that the property given his wife should qualify for the marital deduction is his specific instruction that his executor shall have no power or authority to exercise any discretionary power in any manner which would disqualify the bequest to his wife for the marital deduction. Although the will contained no pecuniary bequest to the wife which the executor could, in his discretion, satisfy by a distribution in kind at estate tax values, thus running the risk of losing the entire marital deduction, it appears that the testator was taking every precaution known to him to assure his estate of the advantage of the marital deduction.

Defendant argues that Article X of the will clearly expresses the intent of testator that defendant have a remainder interest in the property devised and bequeathed to testator's wife. As already expressed herein, it appears to us that the primary object of the testator, as expressed in the language of the will, was to give his wife a fee simple title to the property passing to her under the will in order to qualify it for the marital deduction. By Article IX he provides: "All the rest and residue of my property, located in North Carolina, I will, devise and bequeath unto my wife, HELEN McDARIS, of whatever kind and description and wheresoever the same may be located, at the time of my death, including by way of description but not of limitation * *." "Having devised an estate in fee, it is said that there was no estate left in testator to dispose of." Carroll v. Herring, 180 N.C. 369, 370, 104 S.E. 892, 893 (1920). The attempt to devise a remainder by Article X is void as repugnant to the fee given by Article IX and certainly, in view of the expressed intent of the testator, could have no effect.

Defendant suggests that if the express intent of the testator with respect to the marital deduction be given effect it should only be effective for property valued up to one-half the estate or, in the alternative, give effect to the special treatment with respect to the two certificates of deposit listed in Article IX of the will by an interpretation which would result in the widow's taking a life estate in those with remainder to defendant. It is not within our province, however, to rewrite the will of the testator. Had the testator desired to use a formula bequest for the marital deduction with appropriate directions to the executor in order to insure the qualification for the marital deduction, we presume he would have done so. We agree with the interpretation of the trial court that the language of Article IX of the will following the specific devises *67 and bequests to the wife are merely precatory. In our opinion they constitute merely expressions of the testator in the way of suggestions to his wife as a possible practical method of handling and conserving the property passing to her under the will after the administration of his estate has been completed.

For the reasons stated herein, the judgment of the trial court is

Affirmed.

MALLARD, C. J., and VAUGHN, J., concur.