Adcock v. Perry

• Decision Date: 07 July 1981
• Docket Number: No. 809SC800,809SC800
• Citation: Adcock v. Perry, 279 S.E.2d 871, 52 N.C.App. 724 (N.C. App. 1981)
• Parties: 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, Petitioners, v. James T. PERRY and wife, Hattie Mae H. Perry; William Lyon Whitfield and wife, Beatrice B. Whitfield; Zack P. Whitfield, Unmarried; Donald Wayne Whitfield andwife, Johnnie T. Whitfield; and Jean H. Barbee and husband, Howard J. Barbee,Respondents.
• Court: North Carolina Court of Appeals

Page 871

279 S.E.2d 871

52 N.C.App. 724

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, Petitioners, v. James T. PERRY and wife, Hattie Mae H. Perry; William Lyon Whitfield and wife, Beatrice B. Whitfield; Zack P Whitfield, Unmarried; Donald Wayne Whitfield andwife Johnnie T. Whitfield; and Jean H. Barbee and husband, Howard J. Barbee,Respondents.

No. 809SC800.

Court of Appeals of North Carolina.

July 7, 1981.

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

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

Watkins, Finch & Hooper by Thomas L. Currin, Oxford, for respondents-appellees.

MORRIS, Chief Judge.

Initially, we are concerned with appellants' disregard of the Appellate 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,

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 the 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. Connor, 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); Andrews v. Graham, 255 N.C. 267, 120 S.E.2d 734 (1961); Andrews v. Andrews, 253 N.C. 139, 116 S.E.2d 436 (1960); Finke v. Trust Co., 248 N.C. 370, 103 S.E.2d 466 (1958); Hubbard v. Wiggins, 240 N.C. 197, 81 S.E.2d 630 (1954); Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777 (1951); Doub v. Harper, 234 N.C. 14, 65 S.E.2d 309 (1951). The inconsistent provisions of the testator's will will be subordinated to the testator's prevailing purpose.

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 [52 N.C.App. 731] at 369. Indeed, after examining this will from its four corners we think this testator's general and dominant intention was to devise his wife, Annie S. Perry, a fee simple absolute in all of his real property and bequeath to her absolutely his personal property.

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...