Cummings v. Snyder, 91 N.C. App. 565

Cummings v. Snyder

91 N.C. App. 565 | N.C. Ct. App. | 1988

Lead Opinion

ARNOLD, Judge.

The perplexity presented by the interlocutory nature of this appeal could have been avoided if the trial court had reopened the judgment, amended its conclusions, and directed entry of a *568new judgment in favor of the respondent. See N.C.G.S. § 1A-59 (9)(a).

When a verdict is set aside for error in law, and not as a matter of discretion, the aggrieved party may appeal, provided the error is specifically designated. Britt v. Allen, 291 N.C. 630, 635, 231 S.E. 2d 607, 611 (1977). Because there was an error in law in the trial court’s first order, we hold that the order awarding a new trial is appealable.

The interpretation of a will’s language is a matter of law. Lee v. Barksdale, 83 N.C. App. 368, 375, 350 S.E. 2d 508, 513 (1986), disc. rev. denied, 319 N.C. 404, 354 S.E. 2d 714 (1987); Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E. 2d 246 (1956). When the parties place nothing before the court to prove the intention of the testator, other than the will itself, they are simply disputing the interpretation of the language which is a question of law. Leonard v. Dillard, 87 N.C. App. 79, 81, 359 S.E. 2d 497, 498 (1987). In the case sub judice the parties offer nothing other than the will itself as evidence for their contentions.

There are several basic rules of will interpretation. The most basic rule is that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. Adcock v. Perry, 305 N.C. 625, 629, 290 S.E. 2d 608, 611 (1982). A second cardinal principle is to give effect to the general intent of the testator as that intent appears from the consideration of the entire instrument. Id. The testator’s meaning must be collected from the will itself by attending to the different parts of it and comparing and considering them together. Morris v. Morris, 246 N.C. 314, 316, 98 S.E. 2d 298, 300 (1957).

Petitioner contends that the primary intent of the testatrix was to provide for her minor child. With that contention we agree; however, we do not agree that terminating the life estate furthers that intent nor is it warranted in the language of the trust.

The only logical interpretation of the language of Trust A is that respondent need only reside in the home for a single six consecutive month period during any five year period. We can see no other way to construe this language.

*569When looking at all of the language of Trust A, it is clear that testatrix provided for the home’s upkeep in the event respondent did not reside in it more than the required time. The trustee is empowered to lease the home for no more than twelve months, but such lease can be extended for another twelve months if respondent chooses not to move in after the first term ends. The ability to lease the residence provides a means to maintain the house while providing respondent an opportunity to live there. The respondent is afforded an opportunity to live in the marital home, but he is not mandated to do so.

We vacate the 18 September 1987 order of the trial court which terminated the life estate and remand for entry of judgment in favor of respondent.

Vacated and remanded.

Chief Judge Hedrick concurs. Judge Wells dissents.

Dissenting Opinion

Judge Wells

dissenting.

In my opinion, the intent expressed in the disputed portion of Mrs. Snyder’s will was that the residence on Anderson Drive be kept in use, either as a residence for Mr. Snyder, or to be leased or sold if he chose not to reside there. One signal of his choice not to live there was lack of occupancy on his part for any six consecutive months during any five year period. In his order of 18 September 1987, Judge Bowen found that Mr. Snyder had not lived in the residence under the terms of the will and had forfeited his life estate. This was the correct construction of the will.

I vote to reverse the order granting a new trial and to affirm the order of 18 September 1987.