Hollowell v. Hollowell

Decision Date04 June 1993
Docket NumberNo. 333PA92,333PA92
Citation333 N.C. 706,430 S.E.2d 235
CourtNorth Carolina Supreme Court
PartiesBeatrice H. HOLLOWELL 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.

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. Heard in the Supreme Court 15 March 1993.

Jonathan S. Williams and J. Darby Wood, P.A. by J. Darby Wood, Goldsboro, for plaintiff-appellee.

Dees, Smith, Powell, Jarrett, Dees & Jones by Tommy W. Jarrett, Goldsboro, for defendant-appellants.

FRYE, Justice.

In this case we decide whether the Court of Appeals erred in affirming the trial court's entry of partial summary judgment for plaintiff in which the trial court concluded that plaintiff possesses a one-fourth undivided interest in fee simple in the ninety-five acres of land in question. The resolution of this issue turns upon the proper construction of the will of Ed Langston who died on 30 May 1948. The determinative question is whether the testator's grandnephew, Milford Edgar Hollowell, at the time of his death, owned an interest in the land in question. If not, Milford Edgar Hollowell's widow (plaintiff) has no interest in the land and partial summary judgment in her favor must be reversed. If, on the other hand, Milford Edgar Hollowell owned an interest in the land at the time of his death, then this interest passed to plaintiff under Milford Edgar Hollowell's will. We conclude that the trial court properly construed Ed Langston's will and that the testator's grandnephew, Milford Edgar Hollowell, owned an interest in the land at the time of his death which passed under Milford Edgar Hollowell's will to plaintiff. Accordingly, the Court of Appeals did not err in affirming partial summary judgment in plaintiff's favor.

On 20 February 1948, three months before his demise, Ed Langston executed a will which in pertinent part provides:

I give and devise all of my lands, wherever situated, in equal portions to my nephews Milford Hollowell and Clarence Hollowell, for and during the term of their natural lives, and upon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes.

If either of my said two nephews shall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes.

The central issue in interpreting the will is whether the testator intended the contingent remainders to the surviving issue to vest upon the death of each of the life tenants or only upon the death of both life tenants. The Court of Appeals held that it was the testator's intent to create two separate lines of descent, each operating independent of the other and the contingent remainders were to vest upon the death of each life tenant. We agree.

The testator, Ed Langston, had three brothers and one sister, Lula Langston Hollowell. Ed Langston was the last of the five to die, and at the time of his death he had never married and had no children. He was survived by at least two nephews, Milford Hollowell and Clarence Hollowell, children of his sister, Lula. 1

To determine when the contingent remainders vested, there are two critical dates which must be considered--the date of Ed Langston's death and the date of the death of the first of the named life tenants to die. The first date is illustrated by Chart A and the second date is illustrated by Chart B.

Chart A illustrates the Langston family tree at the time Ed Langston executed his Last Will and Testament on 20 February 1948 and at the time of his demise on 30 May 1948. James Rodney Hollowell (James R. Hollowell), whose name is capitalized, is the only family member shown on the chart who is a party to this action. Chart A

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Milford Hollowell died in 1972, survived by Milford Edgar Hollowell and James R. Hollowell. Both James R. Hollowell and Milford Edgar Hollowell were born before the testator executed his will. Milford Edgar Hollowell died testate in 1980 survived by plaintiff and three children from a previous marriage, Teresa H. Williams, Cathy H. Pearce and Debra Joan Hollowell. His will devised all of his estate to plaintiff.

Chart B illustrates the Langston family tree at the time of Milford Hollowell's (Ed Langston's nephew) demise in 1972. Family members whose names are capitalized are parties to this action. Chart B

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On 26 July 1986 Clarence Hollowell died intestate, leaving no issue. Apparently believing that they held all the interests in question, the individual defendants partitioned the property and conveyed the parcels to one another by division deeds. Plaintiff received no conveyance in these transactions.

On 17 December 1987, the individual defendants conveyed an interest in all the standing timber and pulpwood on the property by timber deed to B & C Logging, Inc., which assigned its interest to Louisiana-Pacific Corporation.

Plaintiff commenced this action by filing a complaint seeking a declaratory judgment construing the Last Will and Testament of Ed Langston and determining the ownership interests of the parties in the land in question. Plaintiff also sought to determine other rights and damages arising out of the ownership of the land. On 2 April 1991, the parties stipulated that if it is ultimately determined that plaintiff owns an interest in the property, defendant Louisiana-Pacific Corporation will be entitled to file pleadings as it shall deem necessary.

After cross motions for summary judgment had been filed, the trial court, on 24 April 1991, granted plaintiff partial summary judgment and denied defendants' summary judgment motion. As part of the judgment, the trial court set aside the division deeds previously executed among the individual defendants. The trial court ultimately concluded that the present title to the ninety-five acres of land is vested in fee simple in the following tenants in common with their respective shares being:

James R. Hollowell one-half undivided interest

Beatrice H. Hollowell one-fourth undivided interest

Teresa H. Williams one-twelfth undivided interest

Cathy H. Pearce one-twelfth undivided interest

Debra Joan Hollowell one-twelfth undivided interest

The Court of Appeals affirmed the trial court. We granted defendants' petition for discretionary review and we now affirm the Court of Appeals.

I.

An elementary rule of will construction is "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." Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960). Pittman v. Thomas, 307 N.C. 485, 299 S.E.2d 207 (1983), stated the well established rule:

"The will must be construed, 'taking it by its four corners' and according to the intent of the testator as we conceive it to be upon the face thereof and according to the circumstances attendant." Patterson v. McCormick, 181 N.C. 311, 313, 107 S.E. 12 (1921). In referring to the "circumstances attendant" we mean "the relationships between the testator and the beneficiaries named in the will, and the condition, nature and extent of [the testator's] property." Trust Co. v. Wolfe, 243 N.C. 469, 473, 91 S.E.2d 246, 250 (1956).

Pittman, 307 N.C. at 492-93, 299 S.E.2d at 211. Thus, our primary focus in interpreting Ed Langston's will is the testator's intent.

As a preliminary matter, we must first determine whether the testator intended to create a tenancy in common or a joint tenancy between the two life tenants, his nephews Milford and Clarence. We conclude that the language shows an intent for Milford and Clarence Hollowell to be tenants in common. In Langston's will there are two separate ways that he evidenced his intent to have the two nephews hold the property as tenants in common. First, the will provides that the land is devised "in equal portions." The language "equal portions" shows an intent to create two separate but equal shares which is inconsistent with a joint tenancy which views the ownership to be single and unified. See Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests at 54-55 (2d ed. 1984) [hereinafter Bergin & Haskell]. Our Court of Appeals has held that the language "share equally" shows an intent to create a tenancy in common rather than the presumptive tenancy by the entireties between a husband and wife. Dearman v. Bruns, 11 N.C.App. 564, 566, 181 S.E.2d 809, 811, cert. denied, 279 N.C. 394, 183 S.E.2d 241 (1971). Dating back to 1895, this Court has held that the phrase "share and share alike" creates a tenancy in common. Midgett v. Midgett, 117 N.C. 8, 10, 23 S.E. 37, 38 (1895). We are convinced that the phrase "equal portions," like "share equally" and "share and share alike," evidences an intent to create a tenancy in common rather than a joint tenancy.

The second basis for our holding that a tenancy in common was created is the language in the will "I give and devise their respective shares...." Defendants contend that the word "respective" is used in the will to clarify the division of the remainder interests in the two life estates. Plaintiff submits, and we agree, that by specifically stating in the will that the division is to be per stirpes there would be no need for clarification of how Ed Langston wanted his property to be distributed. Therefore, "re...

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