52 N.C. App. 724 | N.C. Ct. App. | 1981
Initially, we are concerned with appellants’ disregard of the Appellant Rules of Procedure. Rule 10(b)(2), N.C. Rules of Appellate Procedure, requires an appellant to set out a separate exception to the making or omission of each finding of fact or conclusion of law which is to be assigned as error.
Rule 28(b)(3), N. C. Rules of Appellate Procedure, provides:
Immediately following each question [in the appellate brief] shall be a reference to the assignments of error and exceptions pertinent to the question, identified by their numbers and by the pages of the printed record on appeal at which they appear. Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.
Neither of these rules has received appellant’s attention. Were it not for the fact that the litigation involves title to real property, we would decline to consider the appeal. However, in consideration of the nature of the case and the substantial property rights affected by the judgment, we will treat this appeal as a petition for a writ of certiorari, allow it, and, in this instance, consider appellants’ arguments.
The parties to this proceeding stipulated prior to trial,
*729 That the only issue for determination by the Court in this matter was whether or not [sic] Annie S. Perry was devised fee simple title to the real property which is the subject of this proceeding under and by virtue of the provisions of the Last Will and Testament of W. T. Perry, deceased.
Appellants contend that under a correct interpretation of W. T. Perry’s will Annie S. Perry became seized of a life interest in her husband’s estate with a limited power of disposition to deplete the assets only as needed for her own personal expenses. At Annie S. Perry’s death remainder of the property was to pass to W. T. Perry’s four children, “share and share alike.”
The cardinal principle to be followed when construing a will is to give effect to the general intent of the testator as that intent appears from a consideration of the entire instrument. Peele v. Finch, 284 N.C. 375, 200 S.E. 2d 635 (1973); Wilson v. Church, 284 N.C. 284, 200 S.E. 2d 769 (1973); Y.W.C.A. v. Morgan, Attorney General, 281 N.C. 485, 189 S.E. 2d 169 (1972); Kale v. Forrest, 278 N.C. 1, 178 S.E. 2d 622 (1971); Olive v. Biggs, 276 N.C. 445, 173 S.E. 2d 301 (1970). 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 in isolation. Joyner v. Duncan, 299 N.C. 565, 264 S.E. 2d 76 (1980); Vick v. Vick, 297 N.C. 280, 254 S.E. 2d 576 (1979); Clark v. Conner, 253 N.C. 515, 117 S.E. 2d 465 (1960); Morris v. Morris, 246 N.C. 314, 98 S.E. 2d 298 (1957); McWhirter v. Downs, 8 N.C. App. 50, 173 S.E. 2d 587 (1970). Because the intent and purpose of no two testators can be exactly the same, each will must be separately construed to effect the intent of the particular testator. Roberts v. Bank, 271 N.C. 292, 156 S.E. 2d 229 (1967); Morris v. Morris, supra.
In construing a will every word and clause should be given effect when possible. Apparent conflicts in the words or terms of the will must be reconciled, and irreconcilable repugnancies must be resolved by giving effect to the general prevailing intent of the testator, with greater regard to be given to the dominant purpose of the testator than to the use of any particular words. Joyner v. Duncan, supra; Mansour v. Rabil, 277 N.C. 364, 177 S.E. 2d 849 (1970); Quickel v. Quickel, 261 N.C. 696, 136 S.E. 2d 52 (1964); Worsley v. Worsley, 260 N.C. 259, 132 S.E. 2d 579 (1963);
In the case before us the trial court concluded as a matter of law, “[t]hat the intention of the testator W. T. Perry, as gathered from reviewing the entirety of his will, was to make a general devise of his real and personal property to Annie S. Perry . . . .” We agree, and we think that this intent of the testator to make an absolute devise of all his property, real and personal, to his wife is paramount to the provisions of his will which are antagonistic to that purpose.
In Item 2 of his will testator states:
All of the balance and residue of my property, real and personal which I may own at the time of my death, I give, bequeath and devise unto my beloved wife, Annie Perry . . .”
G.S. 31-38 provides:
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.
Thus, we have a statutory presumption that a general devise of real estate is in fee. The words “give, bequeath and devise” used by testator, in light of G.S. 31-38 created a devise in fee simple absolute of all of his real property to his wife. Unless a will contains plain and express language indicating that the testator did not intend to devise a fee, the devise will be construed as one in fee simple. Basnight v. Dill, 256 N.C. 474, 124 S.E. 2d 159 (1962); Clark v. Connor, supra; Bell v. Gilliam, 200 N.C. 411, 157 S.E. 60 (1931). As stated by Chief Justice Stacy in Taylor v. Taylor, 228 N.C. 275, 45 S.E. 2d 368 (1947), “an unrestricted or indefinite devise of real property is regarded as a devise in fee simple. Heefner v. Thornton, 216 N.C., 702, 6 S.E. (2d), 506; Barco v. Owens, 212 N.C., 30, 192 S.E., 862.” 228 N.C. at 276-77, 45 S.E. 2d
There are two provisions in this will which are not reconcilable with the testator’s general intent as we have found it. It is these provisions which appellants contend restrict Annie S. Perry’s interest in these properties to an estate for life. First, is the provision of the will which appears to limit Annie S. Perry’s power of disposition of the property. In Item 2 of the will immediately following the general absolute devise of his property testator states:
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.
Obviously, this restriction on the devisee’s powers of disposition is not in harmony with the immediately preceding general devise to her. The trial court concluded as a matter of law,
[t]hat the language of Item Two of the will of W. T. Perry, following the general disposition of his estate to Annie S. Perry was precatory in nature, in explanation of why he had left the property to Annie S. Perry, and an attempt by the testator to express that the gift was for his wife’s benefit and not that of their children or her other family members. . . .”
We agree with the trial court that this language was precatory. When this seemingly limited power of disposition is construed as being simply a statement of the testator’s wish that his wife only mortgage or dispose of her real property to provide for her own necessities and that she not do so to benefit her children, the provision is in harmony with testator’s dominant intent to devise his property to his wife in fee. This interpretation corresponds with the testator’s evident testamentary scheme to provide for the
Second, Item 3 of testator’s will states:
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. . . .”
It is this clause which appellants insist limited Annie S. Perry’s interest to only a life estate in the property she received through her husband’s will. Appellants contend that as children of the heirs of children of the testator this clause gave them a remainder in what was remaining of the testator’s property after the life tenant’s death.
This clause cannot easily be reconciled with the testator’s general intent to give Annie S. Perry an absolute and unqualified interest in his property. The general rule with regard to the effect to be given provisions such as this was stated by Justice Walker in Carroll v. Herring, 180 N.C. 369, 104 S.E. 892 (1920), as follows:
Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undis-posed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given . . .
180 N.C. at 371, 104 S.E. 2d at 893; see Quickel v. Quickel, supra, and cases cited therein; Taylor v. Taylor, supra; Heefner v. Thornton, 216 N.C. 702, 6 S.E. 2d 506 (1940); Barco v. Owens, 212 N.C. 30, 192 S.E. 862 (1937); Jolley v. Humphries, 204 N.C. 672, 169 S.E. 417 (1933). In accord with this rule we hold that the language of Item 3 of W. T. Perry’s will in which he attempted to give a remainder interest to his children in the property which he had previously devised and bequeathed absolutely to his wife was
Affirmed.
