Gibboney v. Wachovia Bank, N.A.

• Court: North Carolina Supreme Court
• Writing for the Court: Calabria
• Citation: Gibboney v. Wachovia Bank, N.A., 622 S.E.2d 162 (N.C. 2005)
• Decision Date: 06 December 2005
• Docket Number: No. COA04-1636.,COA04-1636.
• Parties: Walker F. Crocker Caudle GIBBONEY, Plaintiff v. WACHOVIA BANK, N.A., In Its Capacity as Executor of the Estate of Larry W. Caudle, Deceased, Veller Caudle Boone, Ruth Caudle Baity, Raymond C. Caudle, Robert C. Caudle, Edgar H. Caudle, Melissa B. Harrelson, L. Clay Wooten, Barbara Wooten McDonald, Pauline Wooten Cheek, Bernice Wooten Jones, Lois Wooten Beck, Florine Wooten Guevarra, Charles Herman Wooten, Betty Wooten Holder, Bobby Lee Wooten, Nancy Wooten Rist, Jerrie Wooten Lewis and Karen Wooten Hazen, Defendants.

622 S.E.2d 162

Walker F. Crocker Caudle GIBBONEY, Plaintiff v. WACHOVIA BANK, N.A., In Its Capacity as Executor of the Estate of Larry W. Caudle, Deceased, Veller Caudle Boone, Ruth Caudle Baity, Raymond C. Caudle, Robert C. Caudle, Edgar H. Caudle, Melissa B. Harrelson, L. Clay Wooten, Barbara Wooten McDonald, Pauline Wooten

Cheek, Bernice Wooten Jones, Lois Wooten Beck, Florine Wooten Guevarra, Charles Herman Wooten, Betty Wooten Holder, Bobby Lee Wooten, Nancy Wooten Rist, Jerrie Wooten Lewis and Karen Wooten Hazen, Defendants.

No. COA04-1636.

Court of Appeals of North Carolina.

December 6, 2005.

Appeal by defendants from judgment entered 17 September 2004 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 15 June 2005.

Gabriel, Berry, & Weston, L.L.P., by M. Douglas Berry, Greensboro, for plaintiff-appellee.

Browne, Flebotte, Wilson, Horn & Webb, by Daniel R. Flebotte, Creedmore, for defendants-appellants.

CALABRIA, Judge.

The surviving next of kin ("defendants") of Larry W. Caudle ("decedent") appeal a summary judgment order declaring Walker F. Crocker Caudle Gibboney ("plaintiff") the sole beneficiary under the terms of decedent's will. We reverse.

From 1962 until 1975, plaintiff and decedent (collectively "the parties") either dated or remained "good friends," until decedent proposed to plaintiff in June 1975. During the time the parties were "simply in a dating relationship," decedent executed a will dated 25 May 1973. Article II of the will set forth four (4) mutually exclusive tiers of contingent dispositions in descending order of priority, paraphrased as follows:

1st: to a surviving wife, lawfully married to decedent on his death date, "absolutely and in fee simple forever"; or

2nd: if no surviving wife, to decedent's surviving children in equal shares fee simple absolute, or per stirpes to the issue of decedent's deceased children; or

3rd: if no surviving wife, children, or issue of deceased children, to decedent's parents, Edward W. Caudle and Treva W. Caudle, in equal shares, or to the survivor, in fee simple absolute; or

4th: if none of the above persons survive decedent, to "Miss Walker F. Crocker, of Greensboro, North Carolina, if she shall survive decedent in fee simple absolute."

The will failed to include a specific residuary clause.

The parties were married on 20 September 1975, separated on 19 September 1995, and later divorced on 24 February 1997. They executed a property settlement agreement in which they agreed first, to divide their marital assets and second, not to "make any claim for any interest or estate whatsoever in or to any property, real, personal, or mixed, which the other now owns or hereafter acquires." Decedent died on 11 October 2003 predeceased by his parents. He never changed his will, never remarried, and never had children.

The executor indicated decedent's estate would pass intestate by operation of law. The application for probate and letters testamentary included an addendum listing decedent's surviving paternal and maternal next of kin ("next of kin"). Plaintiff filed a complaint on 23 April 2004, seeking entry of a declaratory judgment regarding the construction and interpretation of decedent's will, specifically that she was the sole surviving beneficiary. In a motion for summary judgment, plaintiff asserted there was "no genuine issue as to any material fact affecting [her] entitlement to a declaratory judgment declaring [her] to be the sole residual beneficiary" under decedent's will. On 17 September 2004, the trial court granted summary judgment, declaring plaintiff the sole residual beneficiary. All defendants except Wachovia Bank appeal.

Defendants argue the court erred in granting plaintiff's motion for summary judgment by failing to conclude that the provisions of the will in favor of plaintiff were revoked by N.C. Gen.Stat. § 31-5.4. We agree.

A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2003). When a trial court rules on a motion for summary judgment, "the evidence is viewed in the light most favorable to the non-moving party," Hinson v. Hinson, 80 N.C.App. 561, 563, 343 S.E.2d 266, 268 (1986), and all inferences of fact must be drawn against the movant and in favor of the nonmovant. Floyd v. McGill, 156 N.C.App. 29, 35, 575 S.E.2d 789, 793 (2003).

If possible, the court's duty is to render a will operative rather than invalid. Stephenson v. Rowe, 315 N.C. 330, 335, 338 S.E.2d 301, 304 (1986). The testator's intent is "the polar star which is to guide [the courts] in the interpretation of all wills[.]" Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960). In construing a will, we also consider established rules of law and public policy. Stephenson, 315 N.C. at 335, 338 S.E.2d at 304 (1986). North Carolina General Statutes § 31-5.4 (2003) expressly provides:

[d]issolution of marriage by absolute divorce or annulment after making a will does not revoke the will of any testator but, unless otherwise specifically provided in the will, it revokes all provisions in the will in favor of the testator's former spouse or purported former spouse, including, but not by way of limitation, any provision conferring a general or special power of...