Adcock v. Perry

290 S.E.2d 608 (1982)

Ruby P. ADCOCK and husband, Henry Carlton Adcock; Elsie Christine P. Hanavan and husband, John F. Hanavan; Annie Belle C. Perry, Widow; Nancy P. Jacobs and husband, Claude Jacobs, Jr.; and John Thomas Perry, Divorced v. James T. PERRY and wife, Hattie Mae H. Perry; William Lyon Whitfield and wife, Beatrice B. Whitfield; Jack P. Whitfield, Unmarried; Donald Wayne Whitfield and wife, Johnnie T. Whitfield; and Jean H. Barbee and husband, Howard J. Barbee.

No. 133A81.

Supreme Court of North Carolina.

May 4, 1982.

*611 Currin & Currin by Hugh M. Currin and Hugh M. Currin, Jr., Oxford, for petitioners-appellants Ruby P. Adcock and husband Henry Carlton Adcock, and Elsie Christine P. Hanavan and husband, John F. Hanavan.

Royster, Royster & Cross by S. S. Royster, Oxford, for petitioners-appellants Annie Belle C. Perry, widow, Nancy P. Jacobs and husband, Claude Jacobs, Jr. and John Thomas Perry, divorced.

Edmundson & Catherwood by R. Gene Edmundson, Oxford, for respondents-appellants James T. Perry and wife, Hattie Mae H. Perry.

Watkins, Finch & Hopper by William L. Hopper, Oxford, for respondents-appellees William Lyon Whitfield and wife, Beatrice B. Whitfield, Zack P. Whitfield, unmarried, Donald Wayne Whitfield and wife, Johnnie T. Whitfield.

BRITT, Justice.

As was stipulated by the parties at trial, the sole issue for determination by this court is whether Annie S. Perry was devised the fee simple title to the real property in question under the last will and testament of W. T. Perry. The trial court and the Court of Appeals answered the issue in the affirmative. We disagree with that answer.

There are several basic rules that are applicable to the interpretation of wills. The most basic rule of will construction is that "the intent of the testator is the polar star that must guide the courts in the interpretation of a will." Wing v. Wachovia Bank & Trust Co., 301 N.C. 456, 272 S.E.2d 90 (1980); Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777 (1951). A second cardinal principle is to give effect to the general intent of the testator as that intent appears from a consideration of the entire instrument, Wilson v. Church, 284 N.C. 284, 200 S.E.2d 769 (1973). A third rule is that the intent of the testator must be ascertained from a consideration of the will as a whole and not merely from consideration of specific items or phrases of the will taken in isolation. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

The Court of Appeals, in affirming the judgment of the trial court, concluded that W. T. Perry intended to devise his wife fee simple title to his property. In arriving at this conclusion, the Court of Appeals recognized that there are two provisions of the will inconsistent with this interpretation. The first of these is the language in Item 2 limiting the general devise immediately preceding it. That provision provides:

I do hereby give, grant and extend to the said Annie Perry the right to sell or mortgage any part of the real and personal property hereby devised and bequeathed to her in order to provide funds with which to defray her own necessary personal expenses, but she is not given the power to sell, dispose of or mortgage any part of said property for the purpose of aiding or assisting any of her children or any of the members of her family.

The Court of Appeals held that this language was precatory and did not limit the absolute devise in any manner. The second inconsistent provision is Item 3 of the will providing: "After the death of my said wife, I give, bequeath and devise all of my property remaining to my four children, share and share alike ...." The Court of Appeals found Item 3 void as repugnant to the absolute title first given. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892.

We disagree with the decision of the Court of Appeals and hold that W. T. Perry clearly intended to devise his wife a life estate only, coupled with a limited power to dispose of the property to meet her personal needs.

In trying to ascertain the intent of the testator, the will is to be considered in its entirety so as to harmonize, if possible, *612 provisions which would otherwise be inconsistent. Joyner v. Duncan, 299 N.C. 565, 264 S.E.2d 76 (1980); Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970). A phrase should not be given a significance which clearly conflicts with the evident intent of the testator as gathered from the four corners of the will and the court will adopt that construction which will uphold the will in all its parts if such course is consistent with the established rules of law and the intention of the testator. Joyner v. Duncan, supra; Johnson v. Salsbury, 232 N.C. 432, 61 S.E.2d 327 (1950).

W. T. Perry's testamentary scheme becomes apparent from a reading of the whole will. While it is clear that he sought to provide his wife with assets she could tap for her support during her lifetime, there were express limitations put on her use of the property devised. While W. T. Perry wanted to ensure his wife's ability to meet her own necessary personal expenses, these assets were not to be used to provide assistance to her children or family. They would inherit what remained after his wife's death. All of the words used by the testator are imperative. None of the language can be considered precatory. The construction of W. T. Perry's will as a devise of a life estate is further buttressed by Items 3 and 4 which specifically designate the remaindermen and the distribution of their shares should they not survive the life tenant.

The interpretation given W. T. Perry's will by the Court of Appeals creates sharp conflict between several provisions in the will. Indeed, it results in a majority of the will's provisions being either void as repugnant to the presumed absolute devise or mere expressions of the testator's desire, not mandatory language.

We think that the intent of the testator, as gathered from the four corners of the will, was to devise his wife a life estate. This finding of intent also provides for a harmonious blending of all the provisions of the will. When construed as the devise of a life estate, with the power to sell in order to meet personal needs of the wife, none of the provisions are irreconcilable. Effect is given to each clause, phrase and word. Each string can give its sound. Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298 (1957).

Respondents argue that in North Carolina a devise is presumed to be in fee simple and that the law favors a vesting of a fee simple absolute estate in any situation where such an interpretation is reasonable. N.C. G.S. 31-38.[1] The presumption created by G.S. 31-38, however, by its own terms, may be overcome by a showing that the will plainly intended to convey an estate of less dignity. Consistent with our holding above that the testator's clear intent was to devise to his wife a life estate, we find that the presumption created by G.S. 31-38 of the devise of a fee has been fully rebutted.

Respondents also argue that the rule of construction set forth in Carroll v. Herring, supra, and Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817 (1933), should control the disposition of this case. The rule states:

Where real estate is given absolutely to one person with a gift-over to another of such portion as may remain undisposed of by the first taker at his death, the gift-over is void as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition, or to him, his heirs and assigns forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy. The only exception to such a rule is where the testator gives to the first taker an estate for life only, by certain and express terms....

Hambright v. Carroll, supra, at 498, 168 S.E. 817. Respondents' argument is without merit. All rules of construction must yield to the paramount intent of the testator *613 as gathered from the four corners of the will. Quickel v. Quickel, 261 N.C. 696, 136 S.E.2d 52 (1964); Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368 (1947).

The decision of the Court of Appeals is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MITCHELL, Justice, dissenting.

I respectfully dissent from the majority opinion for the reasons given by Chief Judge Morris in her opinion for a unanimous panel of the Court of Appeals. 52 N.C.App. 724, 279 S.E.2d 871 (1981).

I have no quarrel with the rules of law set forth in the well-written opinion of the majority. Like the majority, I am fully aware that the most basic rule of testamentary construction is that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. But where there is room for doubt as to the intent of the testator, both the legislature and our own prior cases require that a devise be held and construed to be a devise in fee simple absolute. G.S. 31-38; Basnight v. Dill, 256 N.C. 474, 124 S.E.2d 159 (1962); Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

In the present case, I would find at the very least that there is doubt as to the meaning of the testator. The fact that a Superior Court Judge and three judges of the Court of Appeals have held contrary to the holding of the majority tends, in my view, to be at least some indication that the testator did not in plain and express words show an intent to convey to his wife an estate of less dignity than an estate in fee simple. There being some doubt as to what the testator intended, I would not attempt to draft the will for him but, instead, would affirm the Court of Appeals.

NOTES

[1] Devise presumed to be in fee.When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.