Hollowell v. Hollowell

Decision Date04 August 1992
Docket NumberNo. 918SC598,918SC598
Citation420 S.E.2d 827,107 N.C.App. 166
CourtNorth Carolina Court of Appeals
PartiesBeatrice H. HOLLOWELL, Plaintiff, v. James Rodney HOLLOWELL and Wife, Kay Munroe Hollowell; Teresa H. Williams and Husband, David Williams; Cathy Hollowell Pearce and Husband, Lester Pearce; Debra Joan Hollowell (Unmarried), and Louisiana-Pacific Corporation, Defendants.

Everett, Wood, Womble, Finan & Riddle by J. Darby Wood and Jonathan S. Williams, Goldsboro, for plaintiff.

Dees, Smith, Powell, Jarrett, Dees & Jones by Tommy W. Jarrett, Goldsboro, for defendants.

WELLS, Judge.

We first note that this appeal is before us on partial summary judgment. Pursuant to the provisions of G.S. § 1A-1, Rule 54, the trial court certified this judgment for immediate appeal.

A party may resort to the courts for the construction of a will when there are doubts as to a testator's intent and the terms of a will are not set out in clear, unequivocal and unambiguous language. Pittman v. Thomas, 307 N.C. 485, 299 S.E.2d 207 (1983). It is well settled in this jurisdiction that the responsibility to interpret or construe a will is solely that of the courts. Wachovia Bank and Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246 (1956). In this case, the alternative interpretations asserted by plaintiff and the individual defendants of the language found in the Langston Will require judicial construction of this will.

It is the duty of the trial court to utilize established rules of construction when it is called upon to interpret ambiguous provisions of a will. Thornhill v. Riegg, 95 N.C.App. 532, 383 S.E.2d 447 (1989). One of the fundamental rules of the construction of wills is that the intent of the testator is the polar star which must guide the courts in the interpretation of wills. Barnes v. Evans, 102 N.C.App. 428, 402 S.E.2d 164 (1991). The language used by the testator and the sense in which that language is used is the prime source of information available to the courts in determining the testator's intent. Ladd v. Estate of Kellenberger, 314 N.C. 477, 334 S.E.2d 751 (1985).

The provisions of the Langston Will which control the distribution of the land in question contain language of which the meaning is well established in the construction of wills. The language "in equal portions" and "their respective shares" in the devise of land to Milford and Clarence Hollowell connotes the creation of a tenancy in common. See Dearman v. Bruns, 11 N.C.App. 564, 181 S.E.2d 809, cert. denied, 279 N.C. 394, 183 S.E.2d 241 (1971) (language "share equally" in devise to husband and wife created tenancy in common) and Mewborn v. Mewborn, 239 N.C. 284, 79 S.E.2d 398 (1954) (language "equally divided" in devise to testator's sons created tenancy in common). A tenancy in common gives each tenant "a separate undivided interest in the land in his own right and each has an equal right to possession." Webster's Real Estate Law in North Carolina, § 110 (1990).

The phrase "for and during the term of their natural lives" indicates an intent to create life estates. This Court stated in Brinkley v. Day, 88 N.C.App. 101, 362 S.E.2d 587 (1987) that the phrase "to have a home as long as he lives" created a life estate. See also Owen v. Gates, 241 N.C. 407, 85 S.E.2d 340 (1955) (phrase "to hold and have in her lifetime" created life estate).

It is clear that the language found in these provisions of the Langston Will manifests an intent to create a tenancy in common between Milford and Clarence Hollowell, and that Milford and Clarence Hollowell were to be life tenants with each having a right to an undivided one-half interest in the land in question for their lifetime. The creation of these interests supports the conclusion that testator intended for Milford and Clarence Hollowell to hold separate shares which would pass individually upon the death of each life tenant.

The Langston Will also uses the language "their respective shares" and "their respective issue" in the provisions controlling the distribution of the land in question. This language is evidence of a continuation of the independent nature of the interests found in the tenancy in common held by Milford and Clarence Hollowell. It is apparent that the Langston Will represents an intent to have these interests pass independently of each other upon the death of the life tenant, one interest to pass through the line of Milford Hollowell upon his death and the other interest to pass through the line of Clarence Hollowell upon his death.

The one-half undivided interest held by Milford Hollowell passed to his surviving issue per stirpes upon his death in 1971. This distribution gave Milford Edgar Hollowell and James Rodney Hollowell each a one-quarter fee simple absolute interest in the land in question. Milford Edgar Hollowell and James Rodney Hollowell could then convey, devise or otherwise dispose of their respective interests as they desired. Milford Edgar Hollowell devised his one-quarter interest to his wife. Therefore, we hold that plaintiff possesses a one-quarter interest in fee simple pursuant to her husband's will and that individual defendant James Rodney Hollowell possesses a one-quarter interest from his father, Milford Hollowell.

Plaintiff also contends that her late husband held a contingent remainder in Clarence Hollowell's one-half interest; that this contingent remainder was devised to her by operation of her husband's will, and that consequently, the death of Clarence Hollowell without issue requires distribution per stirpes of this interest and gives plaintiff an additional one-quarter interest in the land in question. We disagree.

The clause of the Langston Will in question directs that upon the death of Clarence Hollowell without issue his one-half interest...

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7 cases
  • Hollowell v. Hollowell
    • United States
    • North Carolina Supreme Court
    • June 4, 1993
    ...1993. On defendants' petition for discretionary review pursuant to N.C.G.S. § 7A-31 of a decision of the Court of Appeals, 107 N.C.App. 166, 420 S.E.2d 827 (1992), which affirmed a judgment entered for plaintiff by Duke, J., at the 22 April 1991 Civil Session of Superior Court, Wayne County......
  • In re Gonzales
    • United States
    • U.S. Bankruptcy Court — Eastern District of North Carolina
    • June 24, 2013
    ...to Barbour and the debtor as tenants in common. See, e.g., Midgett v. Midgett, 117 N.C. 8, 23 S.E. 37 (1895); Hollowell v. Hollowell, 107 N.C. App. 166, 420 S.E.2d 827 (1992), aff'd, 333 N.C. 706, 430 S.E.2d 235 (1993); Dearman v. Bruns, 11 N.C. App. 564, 181 S.E.2d 809 (1971). On several o......
  • Rutledge v. Feher
    • United States
    • North Carolina Court of Appeals
    • September 5, 2017
    ...Bank & Trust Co. v. Schneider , 235 N.C. 446, 70 S.E.2d 578 (1952) ) (citations omitted); see also Hollowell v. Hollowell , 107 N.C. App. 166, 174, 420 S.E.2d 827, 832 (1992) ("The triggering event for the passage or vesting of the contingent remainder in this case is the death of each of t......
  • Walker v. Foley
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    • North Carolina Court of Appeals
    • October 18, 2022
    ...testator's intent and the terms of a will are not set out in clear, unequivocal and unambiguous language." Hollowell v. Hollowell , 107 N.C. App. 166, 171, 420 S.E.2d 827, 831 (1992). However, "[i]f a will is sufficiently distinct and plain in its meaning as to enable the court to say that ......
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