First Union Nat. Bank v. Moss

• Decision Date: 16 March 1977
• Docket Number: No. 7628SC686,7628SC686
• Citation: First Union Nat. Bank v. Moss, 233 S.E.2d 88, 32 N.C.App. 499 (N.C. App. 1977)
• Court: North Carolina Court of Appeals
• Parties: FIRST UNION NATIONAL BANK of North Carolina, Executor under the Will of Cecil Paul Moss and First Union National Bank of North Carolina, Executor under the Will of Helen R. Moss v. David R. MOSS et al.

Page 88

233 S.E.2d 88

32 N.C.App. 499

FIRST UNION NATIONAL BANK of North Carolina, Executor under the Will of Cecil Paul Moss and First Union National Bank of North Carolina Executor under the Will of Helen R. Moss v. David R. MOSS et al.

No. 7628SC686.

Court of Appeals of North Carolina.

March 16, 1977.

Redmond, Stevens, Loftin & Currie, P. A., by John W. Mason and John S. Stevens, Asheville, for plaintiff appellees.

Adams, Hendon & Carson, P. A., by Geo. Ward Hendon and George W. Saenger, Asheville, for defendant appellants, David R. Moss and Carolyn R. Cummings.

Shuford, Frue, Sluder & Best by Gary A. Sluder and Ronald D. Brondyke, Asheville, for defendant appellant, The Presbyterian Children's Home of Black Mountain, North Carolina, Inc.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis, P. A., by Barry B. Kempson, Asheville, for defendant appellees, The Union Theological Seminary in Virginia and Board of Annuities and Relief of the Presbyterian Church in the United States.

CLARK, Judge.

This appeal raises the following issue: Did Helen R. Moss in her will, by devising the remainder of her estate "including any property or estate over which I have or may have any power of appointment", effectively execute the power of appointment given to her by her husband, Cecil Paul Moss, in his will, which required that she "appoint and direct in an effective will or codicil specifically referring to the power of appointment"?

The cardinal rule in interpreting and construing a will, followed in countless North Carolina cases since Blount v. Johnston, 5 N.C. 36 (1804), is that the intention of the maker be ascertained if possible. The intention which controls is that which is manifest, expressly or impliedly, from the language of the will. Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622 (1971); In re Will of Cobb, 271 N.C. 307, 156 S.E.2d 285 (1967); Weston v. Hasty, 264 N.C. 432, 142 S.E.2d 23 (1965); Dearman v. Bruns, 11 N.C.App. 564, 181 S.E.2d 809 (1971); 95 C.J.S. Wills § 586 (1957); 80 Am.Jur.2d Wills § 1143 (1975). Where the intention is clearly and consistently expressed there is no need for judicial interpretation, and the court must first examine the will and, if possible, ascertain its meaning without reference to rules or canons of construction. Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334 (1953). Only where there is ambiguity or uncertainty is it proper for the court to take into consideration the established rules or canons for the construction of wills. Rhoads v. Hughes, 239 N.C. 534, 80 S.E.2d 259 (1954); Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17 (1945); Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662 (1940). A will which admits of two constructions is ambiguous, for ambiguous simply means capable of being understood in more senses than one. Moore v. Parrish, 38 Wash.2d 642, 228 P.2d 142 (1951). The will of the donor of a power of appointment and the will of the donee of the power must be construed together. In re Price's Will, 4 Misc.2d 1023, 163 N.Y.S.2d 34 (1956); Republic Nat'l. Bank v. Frederick's, 274 S.W.2d 431 (Tex.Civ.App.1954), rev'd on other grounds 155 Tex. 79, 283 S.W.2d 39 (1955). Joint construction is particularly appropriate in the present case since the two wills were executed on the same day before the same witnesses, one of whom was an attorney, appoint the same executor and contain very substantially identical language except for the dispositive provisions.

We are called upon to construe the term in the will of Cecil Paul Moss which provided that his wife could dispose of the principal of the marital trust by "specifically" referring to the power and the term in the will of Helen R. Moss which devised any property over which she may have "any power of appointment." The word "specifically" usually means explicitly or definitely. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Straton v. Hodgkins, 109 W.Va. 536, 155 S.E. 902 (1930). It does not always mean that an item be individually named, and where it is clear that the intention of the drafter is to the contrary, such narrow meaning will not be assigned. Administrator, F. A. A. v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975); California v. Richardson, 351 F.Supp. 733 (D.C.Cal.1972). The word "any" has a diversity of meanings, and its meaning in a particular case depends on the context or subject matter of the statute or document in which it is used. State ex rel. Womack v. Jones, 201 La. 637, 10 So.2d 213 (1942). As used in a will, "any" may have one of several meanings according to the subject which it qualifies and should be construed in context with other words used in the bequest. In re Scheyer's Estate, 336 Mich. 645, 59 N.W.2d 33 (1953). We conclude that the terms "specifically" and "any" as used in this context are sufficiently ambiguous to allow an examination of the circumstances surrounding the execution of the wills in addition to the four corners of the instruments. Trust Co. v. Jones, 210 N.C. 339, 186 S.E. 335 (1936); Adler v. Bank, 4 N.C.App. 600, 167 S.E.2d 441 (1969).

The language used in the two wills reveals that the primary concern of Mr. & Mrs. Moss was the security and comfort of the surviving spouse, and secondary concerns were tax savings and charitable contributions. The dispositive provisions of the will of Mr. Moss provided that the income from both the marital deduction and the residuary trust was to go to Mrs. Moss, and furthermore she was given the absolute and unfettered power to invade the principal of the marital deduction trust during her lifetime and the power to devise it to whomever she wished upon death. Appellants concede that she possessed a general power of appointment. Mr. Moss did not give his wife the minimum power over the marital share that he could have in order to obtain maximum tax benefits. Rather he gave her broad powers over disposition, limited only to the requirement of a specific reference in her will, which powers indicate confidence and trust in her judgment and ability to manage her property. The fact that even if the power were exercised, Mr. Moss elsewhere in his will made generous provision for his children, the other natural objects of his bounty, lends support to the conclusion that he had no intention to restrict his wife unduly in the disposition of the property subject to the power of appointment. Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246 (1956); 7 Strong, N.C. Index, Wills § 78 (2d Ed. 1968).

The language in the will of Helen R. Moss also exhibits concern for the security of her spouse, for charitable institutions, and for minimizing the tax burden upon her estate. If she predeceased her husband, all of her property was to go to him. The single most significant feature of her will which leads to the conclusion that she intended to exercise the power of appointment created in her husband's will is the distinction that exists between the dispositive provisions if she predeceased him and those if he predeceased her. Item Three provided that if she predeceased her husband, he was to have "all of my property and estate of every kind and wheresoever situate of which I die seized and possessed." Item Five provided that if he predeceased her, she was disposing of "all the rest, residue and remainder of my property and estate, whether real, personal, or mixed, of every nature and wherever situate, including any property or estate over which I have or may have any power of appointment." (Emphasis added.) The fact that Mrs. Moss made reference to property under a power only in the event that her husband died first is evidence that she was concerned only with the power created in his will, and was thereby making special reference to it. Were this boiler-plate language only, it would be included in Item Three as well. The omission in Item Three and inclusion in Item Five is evidence of the specific nature of the language in this context. The language indicates an awareness by...