Forester v. Marler

• Decision Date: 06 October 1976
• Docket Number: No. 7624SC242,7624SC242
• Parties: Eva FORESTER v. Zella Freeman MARLER et al.
• Court: North Carolina Court of Appeals

Page 646

228 S.E.2d 646

31 N.C.App. 84

Eva FORESTER v. Zella Freeman MARLER et al.

No. 7624SC242.

Court of Appeals of North Carolina.

Oct. 6, 1976.

McGuire, Wood, Erwin & Crow by William F. Wolcott, III, and Larry E. Davis, Asheville, for petitioner-appellee.

Ronald W. Howell, Marshall, for respondents-appellants.

Barden & Ruff, Asheville, for Stephen L. Barden, III, Guardian ad Litem for the unknown heirs of Jack Freeman and all unborn persons related to Jack Freeman.

Adams, Hendon & Carson, P.A., Asheville, for James Gary Rowe, Guardian ad Litem for the unknown heirs of Elmer R. Freeman and all unborn persons related to Elmer R. Freeman.

PARKER, Judge.

The devolution of a lapsed devise or legacy is controlled by G.S. 31--42. Subsection (c) of that statute provides that where a devise or legacy lapses, it shall pass under the applicable residuary clause or, if there be none, then as if the testator had died intestate with respect thereto, 'if a contrary intent is not indicated by the will.' We agree with the trial court's conclusion that a contrary intent is not indicated by the will of Elmer R. Freeman, and we affirm the judgment directing distribution of the entire estate to the petitioner, who, as the sole surviving parent, is the person entitled to take the entire estate under the applicable intestate succession statute, G.S. 29--15(3).

We find unpersuasive the contention made by appellants that a contrary intent was indicated by the will of Elmer R. Freeman because he devised and bequeathed all of his property to his brother, Jack Freeman, 'absolutely and in fee simple forever.' These are technical words which defind the quantum and quality of the estate granted. They do not indicate an intention that the property affected should remain in the family of Jack Freeman in event he should predecease the testator. '(T)he technical term 'in fee simple' is to be given its technical meaning in the absence of a clear expression of a contrary intention in the will itself.' Olive v. Biggs, 276 N.C. 445, 459, 173 S.E.2d 301, 310 (1970). We find no such contrary intention expressed in the will of Elmer R. Freeman. The statement in Item Two that the testator was 'fully aware' of who his blood relatives were and of all that they, or any of them, had done or failed to do for him, and that he was 'taking this family history into consideration' in making the disposition of his property to his brother, simply falls short of expressing any intention that his brother's family, or, indeed, anyone else in particular, should take in event his brother should predecease him. Such an intention, had the testator entertained it, could have easily been expressed in simple and direct language.

We also reject appellants' contention that summary judgment was improper because a genuine issue of fact was shown to exist concerning the extent of the testator's association and affection for his brother's family as compared with his association and feelings toward his mother. The conflicting affidavits filed by the parties concerning these matters were simply not relevant to any issue before the court, and they were properly ignored by the court in making its determination. The intention of the testator must be determined from the will itself. Where, as here, the...