NC NAT. BANK OF GREENSBORO v. Apple

383 S.E.2d 438 (1989)

NORTH CAROLINA NATIONAL BANK OF GREENSBORO, North Carolina, Executor of the Estate of Anna M. Kreimeier, Plaintiff-Appellee, v. Ms. Jean APPLE and Mrs. Patricia (Apple) Crews, Defendants-Appellees, and The Estate of Lillian P. Brennan, Deceased, and William R. Brennan, Defendants-Appellants.

No. 8818DC1333.

Court of Appeals of North Carolina.

September 19, 1989.

*439 Booth, Harrington, Johns and Campbell by A. Frank Johns, Greensboro, for plaintiff-appellee North Carolina Nat. Bank of Greensboro.

*440 James W. Lung, Greensboro, for defendants-appellees Ms. Jean Apple and Mrs. Patricia (Apple) Crews.

Rivenbark, Kirkman, Alspaugh & Moore by Douglas E. Moore and John W. Kirkman, Jr., Greensboro, for William R. Brennan.

LEWIS, Judge.

In construing wills there is a general presumption against intestacy. McKinney v. Mosteller, 85 N.C.App. 429, 355 S.E.2d, 164 (1987), rev'd on other grounds, 321 N.C. 730, 365 S.E.2d 612 (1988). A residuary clause in a will should be construed so as to prevent intestacy as to any part of the testator's estate, unless there is an apparent intent to the contrary. Id. Citing, Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916). The court has a duty to render a will operative and to give effect to testator's intent if reasonable interpretation can be given which is not in contravention of some established rule of law. Stephenson v. Rowe, 315 N.C. 330, 338 S.E.2d 301 (1986).

Guided by the court's duty to render the will operative and the presumption against intestacy in whole or in part, we turn to the language of the will to ascertain the testator's intent. Moore v. Hunter, 46 N.C.App. 449, 265 S.E.2d 884 (1980). The testator writes that "the part of any deceased daughter or grandchild [is] to go to the survivor in the percentage indicated." The question before us is whether "survivor" signifies the predeceased daughter's surviving issue alone or all those named beneficiaries who survived the testator, including Mrs. Brennan. To interpret the word "survivor" we look at the clause which follows: "in the percentage indicated." Had the testator intended for "survivor" to mean the issue surviving a deceased daughter, the phrase "in the percentage indicated," would be wholly redundant and superfluous. In that the testator had already written that "the part of any deceased daughter or grandchild" would go to the survivor, the phrase "in the percentage indicated" has meaning only if that "percentage" is different from the "part" of the deceased beneficiary. In other words, had the testator meant "survivor" to signify the issue of that beneficiary, then she could have left out the final clause and ended the sentence after the word "survivor." The sentence then would have read, "... the part of any deceased daughter or grandchild [is] to go to the survivor."

Every word and clause in a will must be presumed to have some meaning and if possible be given an effect. Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622 (1971). The final clause, "in the percentage indicated" adds meaning to the sentence only if the "percentage[s]" referred to are those assigned to the other named beneficiaries, according to which they will divide that part of the estate originally intended for the deceased beneficiary. To read this final clause otherwise is to remove the due effect of those words. Since all heirs named in the will had percentages assigned, all are survivors.

We conclude that the testator intended that upon the death of one named beneficiary, each surviving named beneficiary should take her share, "in the percentage indicated." The trial judge stated that on this or any reading of the will, the percentages will not add up to 100%. Following, once again, the presumption against partial intestacy, we conclude that the will can be read to avoid partial intestacy by multiplying the percentage assigned to each surviving named beneficiary by 100/65, the ratio of the whole estate to that which has been apportioned. This method yields the following results:

Mrs. Lillian Brennan      53.84615%
Jean Apple                15.38462%
Patricia Apple            15.38462%
William R. Brennan        15.38462%

This method accounts for the whole estate by apportioning the predeceased daughter's share to each surviving named beneficiary according to the "percentage indicated" in the residuary clause.

This will can be given a reasonable construction so to uphold it and avoid partial intestacy. Stephenson v. Rowe, supra. We conclude that the term "survivor" signifies those named beneficiaries who survived the testator.

*441 We have therefore concluded that the language of the will can be upheld to avoid intestacy. We add, however, that were this not the case and had this provision of the will been deemed fatally ambiguous, correct application of the anti-lapse statute would have yielded the same result. While the trial judge apparently applied G.S. 31-42(a) in assigning Elizabeth Apple's share to Elizabeth's children, G.S. 31-42(c)(2) states that where a residuary devise is void or revoked, "such devise or legacy shall continue as a part of the residue and shall pass to other residuary devisee or legatee...." The provision of the will in question is a "residuary device" because it disposes "all ... property ... not required to carry out the provisions hereinabove," and therefore accounts for all property which has not otherwise been disposed. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916). Elizabeth Apple's share would, according to G.S. 31-42(c), pass on to all other "named beneficiaries." Bear v. Bear, 3 N.C.App. 498, 165 S.E.2d 518 (1969). In that each beneficiary is a beneficiary according to the percentage assigned to them in the will, each would then take Elizabeth Apple's share according to the percentage assigned, yielding the identical result we have determined in upholding the will.

Vacated and remanded for judgment in accordance with this opinion.

BECTON and PHILLIPS, JJ., concur.