Dearman v. Bruns

181 S.E.2d 809 (1971)

11 N.C. App. 564

C. H. DEARMAN, Executor of the Estate of Richard Shaw Brown v. Lula Rumple BRUNS, Widow, Individually and as Executrix of Minnie Rumple Brown, et al.

No. 7122SC246.

Court of Appeals of North Carolina.

June 23, 1971.

*810 William P. Pope, Statesville, for plaintiff appellant.

Collier, Harris & Homesley by Richard M. Pearman, Jr., Statesville, for defendants appellants.

Sowers, Avery & Crosswhite by W. E. Crosswhite, Statesville, for defendants appellees.

CAMPBELL, Judge.

The sole question presented on this appeal is whether the terms of the Will of E. A. Rumple, deceased, created an estate by the entireties between Minnie Rumple Brown and her husband, Richard Shaw Brown, or whether the terms created a tenancy in common between Minnie Rumple Brown and Richard Shaw Brown.

It is well settled that the cardinal principle in the construction of a will is to give effect to the intent of the testator as it appears from the language used in the instrument itself. The intent is to be gathered from a consideration of the will from its four corners and such intent should be given effect insofar as that can be done within the limits of rules of law fixed by statute or by decisions of the Courts. Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970); McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857 (1965).

*811 Here, E. A. Rumple, deceased, devised the land in question "[t]o my daughter Minnie and Shaw Brown Forty (42) two acres including the [sic] my residence and out buildings. * * * My daughter Minnie and Shaw Brown is to bear all my expensessuch as doctor bills and funeral expenses and they are to share equally in the 42 acre tract above mentioned." A conveyance of land to husband and wife, nothing else appearing, creates an estate by the entireties, with right of survivorship. Freeze v. Congleton, 276 N.C. 178, 171 S.E.2d 424 (1970). But here, the testator indicated a desire that his daughter and her husband "share equally" in the land.

A husband and wife do not "share equally" in an estate by the entireties. The husband has the exclusive right during coverture to possession, control, and use of the land. He has the absolute right to income from such property, including rents and profits. North Carolina Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643 (1965); Freeze v. Congleton, supra. Execution against the husband can be levied on rents and profits to the exclusion of any claim of the wife. Lewis v. Pate, 212 N.C. 253, 193 S.E. 20 (1937). See also L. & M. Gas Co. v. Leggett, 273 N.C. 547, 161 S.E.2d 23 (1968). It is possible that a wife might receive no benefits at all from land held by the entireties if she predeceases her husband, for upon the death of one spouse, title to lands held by the entireties vests in the survivor, and no right, title, or interest of any kind passes to the estate of the deceased. Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267 (1954).

If a tenancy in common is created, the cotenants do "share equally" in the land. The possession of one tenant in common is the possession of the other and each has a right to enter upon the land and enjoy it jointly with the other. If one cotenant commits an act amounting to waste or destruction of the property, the other cotenant has a right to recover of him. Jones v. McBee, 222 N.C. 152, 22 S.E.2d 226 (1942). Each cotenant is entitled to his share of the rents and profits, and one cotenant is entitled to an accounting for rents collected by the other cotenant. Hunt v. Hunt and Lucas v. Hunt, 261 N.C. 437, 135 S.E.2d 195 (1964).

The phrase "to share equally" is inconsistent with an intention to create an estate by the entireties. We are of the opinion that the phrase indicated a desire on the part of the testator to create a tenancy in common between Minnie Rumple Brown and Richard Shaw Brown. To hold that the will, considered from its four corners, created an estate in the entirety with the inclusion of the words "to share equally" would render that phrase meaningless and surplusage. But considering that phrase along with the rest of the devise, the intention of the testator becomes reasonably clear. See Faulkner v. Ramsey, 178 Tenn. 370, 158 S.W.2d 710 (1942).

The trial judge reached the correct result and the judgment appealed from is

Affirmed.

BRITT and GRAHAM, JJ., concur.