Brawley v. Sherrill

• Decision Date: 03 September 2019
• Docket Number: No. COA18-1043,COA18-1043
• Citation: 833 S.E.2d 36,267 N.C.App. 131
• Parties: Billie Cress Sherrill BRAWLEY, as Executrix of the Estate of Zoie S. Deaton a/k/a Zoe Lee Spears Deaton, Plaintiff, v. Bobby Vance SHERRILL, Bradley Brawley, and Rebecca Brawley Thompson, Defendants.
• Court: North Carolina Court of Appeals

267 N.C.App. 131

833 S.E.2d 36

Billie Cress Sherrill BRAWLEY, as Executrix of the Estate of Zoie S. Deaton a/k/a Zoe Lee Spears Deaton, Plaintiff,

v.Bobby Vance SHERRILL, Bradley Brawley, and Rebecca Brawley Thompson, Defendants.

No. COA18-1043

Court of Appeals of North Carolina.

Filed: September 3, 2019

Homesley, Gaines, Dudley & Clodfelter, LLP, Statesville, by T.C. Homesley, Jr., and Christina E. Clodfelter, for defendant-appellee Bobby Vance Sherrill.

Jones, Childers, Donaldson & Webb, PLLC, by Mark L. Childers, Mooresville, for defendant-appellant Rebecca Brawley Thompson.

No brief filed for plaintiff-appellee Billie Cress Sherrill Brawley as Executrix of the Estate of Zoie S. Deaton a/k/a Zoe Lee Spears Deaton.

No brief filed for defendant-appellee Bradley Brawley.

ZACHARY, Judge.

This appeal concerns application of the Latin term "per stirpes ," which has been employed as a term of art in wills and estates for more than a century in America and adopted from English common law. A will may provide for the distribution of the interest of a beneficiary who does not survive the testator. The use of the term per stirpes directs a specific manner of distribution to the survivors of the predeceased beneficiary.

On 20 June 2018, the trial court issued a declaratory judgment order interpreting provisions of the testatrix's will, pursuant to which the testatrix conveyed her entire estate to her two children provided that, if either of them predeceased her, that deceased child's interest would be devised to "my grandchildren, per stirpes ." Defendant-Appellant Rebecca Brawley Thompson ("Rebecca") argues on appeal that, because the will is clear and unambiguous, the trial court erred in construing the testatrix's intent as to this provision. After careful review of the will and applicable law, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On 30 April 1968, Zoie S. Deaton ("Testatrix") executed her last written will and testament, which provides, in relevant part:

ITEM I: I give devise and bequeath all of my estate and property ... to my children, Billie Cress Sherrill Brawley and Bobby Ray Sherrill, if they are living at the time of my demise, to be theirs absolutely and in fee simple, share and share alike.

ITEM II: If either of my children shall predecease me, I direct that either his or her share shall go to my grandchildren, per stirpes .

At the time of Testatrix's death, her son Bobby Ray Sherrill ("Bobby Ray") was no longer living, but was survived by one child, Defendant-Appellee Bobby Vance Sherrill ("Bobby Vance"). Testatrix's daughter Billie Cress Sherrill Brawley ("Billie Cress") survived her, and her two children, Rebecca and Bradley Brawley ("Bradley"), also survived Testatrix. In sum, at the time of her death, Testatrix had one living child and three living grandchildren.

Billie Cress was named executrix of the estate. She filed an action for declaratory judgment, requesting that the trial court construe the terms of the will. Specifically, Billie Cress asked the trial court to determine whether Bobby Ray's share under Item II of the will vested solely in his son, Bobby Vance, or in all three of Testatrix's grandchildren. The parties did not dispute Billie Cress's share in the estate.

The trial court entered judgment determining¹ that Testatrix's intent under Item II was to "create two branches for distribution purposes," one branch going to Billie Cress and the other to Bobby Ray. Consistent with this intent, the trial court concluded that Bobby Ray's one-half share in the estate vested solely in his son Bobby Vance, to the exclusion of the other two grandchildren, Rebecca and Bradley.

Rebecca appeals.

II. ANALYSIS

Rebecca argues that the trial court erroneously interpreted the will by prematurely considering Testatrix's intent, rather than first determining whether the will itself was unequivocal on its face. Rebecca contends that the will unambiguously directs that Bobby Ray's one-half share be divided equally among all of the grandchildren.

A. Standard of Review

"The interpretation of a will's language is a matter of law. 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." Cummings v. Snyder , 91 N.C. App. 565, 568, 372 S.E.2d 724, 725 (1988) (citations omitted). We review questions of law de novo . Simmons v. Waddell , 241 N.C. App. 512, 526, 775 S.E.2d 661, 676 (2015).

Here, the will was the only relevant evidence introduced at trial and the only evidence included in the record on appeal, and the parties cite only the will's language in their respective arguments. As a result, we apply the de novo standard to the entirety of this appeal.

B. Intent and Interpretation

It is an elementary rule in this jurisdiction that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In attempting to determine the testator's intention, the language used, and the sense in which it is used by the testator, is the primary source of information, as it is the expressed intention of the testator which is sought.

Pittman v. Thomas , 307 N.C. 485, 492, 299 S.E.2d 207, 211 (1983) (quotation marks and citations omitted).

The interpretation of any will is as simple, or complicated, as its language. "Where the language employed by the testator is plain and its import is obvious, the judicial chore is light work; for in such event, the words of the testator must be taken to mean exactly what they say." McCain v. Womble , 265 N.C. 640, 644, 144 S.E.2d 857, 860 (1965). Resort to canons of construction is warranted only when the provisions of a will are set forth in unclear, equivocal, or ambiguous language. Buchanan v. Buchanan , 207 N.C. App. 112, 116, 698 S.E.2d 485, 488 (2010).

As recounted supra , Item I of the will bequeaths Testatrix's estate to Billie Cress and Bobby Ray, "if they are living at the time of [Testatrix's] demise, to be theirs absolutely and in fee simple, share and share alike." Neither party disputes that this devise, by its plain language, and consistent with North Carolina law, provides for an equal per capita distribution to Testatrix's children as individuals. See, e.g. , Wooten v. Outland , 226 N.C. 245, 248, 37 S.E.2d 682, 684 (1946) ("[W]hen [beneficiaries] take directly under a bequest or devise as individuals and not in a representative capacity, and the testator provides that the division or distribution shall be in equal proportions, they take per capita.").

What the parties do dispute is the meaning of Item II's language: "If either of my children shall predecease me, I direct that either his or her share shall go to my grandchildren, per stirpes ." Contrary to a per capita devise, a per stirpes distribution "denotes the division of an estate by representation, a class taking the share to which the deceased whom they represent would have been entitled had he been living." Wachovia Bank & Tr. Co. v. Bryant , 258 N.C. 482, 485, 128 S.E.2d 758, 761 (1963). We conclude that our Supreme Court's decision in Bryant controls, and compels a reversal of the trial court's interpretation of the will.

The devise at issue in Bryant was as follows: "to my nephews and nieces, the child or children of any deceased nephew and niece to receive the share the parent would have taken, the said distribution to be per stirpes and not per capita." Id. at 484, 128 S.E.2d at 761. The appellant contended that the last clause, which included the per stirpes language, operated to modify the class of "nephews and nieces," rather than "the child or children of any deceased nephew and niece," such that the nephews and nieces, and not their issue, would take per stirpes according to the respective representations of their fathers, that is, the testator's unnamed siblings. Id. The Supreme Court disagreed, holding that the testator had clearly "recognized the nephews and nieces as the stirpes and not their fathers ." Id. at 485, 128 S.E.2d at 761 (emphasis added).

The Court explained:

Stirp or stirps means the root or trunk, a person from whom a branch of a family is descended. The term "per stirpes" denotes the division of an estate by representation, a class taking the share to which the deceased whom they represent would have been entitled had he been living.

We think the last clause in the provision under consideration modifies the one immediately preceding it .... The testator's gift was to a class, nephews and nieces. He made them the primary legatees after the life estate of his wife—not because they represented a particular brother of his but because they were his nephews and nieces. Not once did he refer to them as children of his deceased brothers .... No suggestion that they were to take according to stock or root immediately followed the designation of the nephews and nieces as beneficiaries. That direction followed the designation of those who would take if a nephew or niece died before the date for distribution.

Id. (citation omitted).

In the instant case, the will provides that Testatrix's children, Bobby Ray and Billie Cress, would share equally in her estate. Item II then provides that "if either of [her] children" should predecease Testatrix, "either his or her share shall go to my grandchildren, per stirpes ." The class identified in Item II is quite explicitly "my grandchildren ," and not "the issue of the predeceased beneficiary." The addition of the term "per stirpes " indicates that the share or shares of any predeceased beneficiary shall then be distributed amongst the grandchildren by representation "according to stock or root."² Id. In other words, the predeceased beneficiary's share must be distributed amongst all of Testatrix's grandchildren, with the percentages varying based not upon the total...