McWhirter v. Downs
| Decision Date | 06 May 1970 |
| Docket Number | No. 7026SC36,7026SC36 |
| Citation | 8 N.C.App. 50,173 S.E.2d 587 |
| Parties | Nancy H. McWHIRTER v. Kenneth R. DOWNS, Executor of the Estate of W. H. McWhirter, deceased, NancyMarylan McWhirter; and Geraldine M. McWhirter. |
| Court | North Carolina Court of Appeals |
H. Parks Helms, Clayton, Lane & Helms, Charlotte, for plaintiff-appellant-appellee.
William H. Booe, Charlotte, for defendant appellees-appellants.
Plaintiff is the wife of a nephew of W. H. McWhirter who died on 10 December 1967 in Mecklenburg County. His will, which has been duly filed and probated in Mecklenburg County, provides in Items Eight, Nine and Ten as follows:
'ITEM EIGHT
I will, devise and bequeath to Mary Lee Cory the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS.
I will, devise and bequeath to Nancy H. McWhirter the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS.
I will, devise and bequeath to my nieces and nephews and to my deceased wife, Nancy H. McWhirter's nieces and nephews with the exception of Mary Lee Cory and Nancy H. McWhirter foregoing named the sum of ONE THOUSAND AND NO/100 ($1,000.00) each.'
Plaintiff's sole assignment of error is to the conclusion of the court that she is not the Nancy H. McWhirter whom the testator intended as the donee under Item Nine of his Last Will and Testament. The trial court made only the following three findings of fact:
'1. The plaintiff, Nancy H. McWhirter, is not a niece nor a nephew of the deceased testator, W. H. McWhirter;
2. The plaintiff is not a niece nor a nephew of Nancy H. McWhirter, the deceased wife of the deceased testator, W. H. McWhirter; and
3. The plaintiff is not the person whom the deceased testator intended as the donee under Item Nine of his Last Will and Testament.'
While finding number 3 is not denominated as such, it is obviously a conclusion drawn by the court from the facts. In our opinion it is supported by the first two findings which are not excepted to and are therefore deemed by us to be supported by the evidence. 1 Strong, N.C. Index 2d, Appeal and Error, § 28, and cases therein cited.
It is elementary that the intent of a testator is to be gathered from a consideration of a will from its four corners. McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857, and cases therein cited. Item Ten of the will clearly identifies the Nancy H. McWhirter named in Item Nine as being a member of a particular class--that is, nieces and nephews of the testator or his deceased wife. The court's first two findings to the effect plaintiff is not within that class support the conclusion made that plaintiff is not the Nancy H. McWhirter named in Item Nine as a donee and the further conclusion that plaintiff is not entitled to recover in this action. Plaintiff's assignment of error is overruled.
As a basis for their appeal, defendants contend that the court is without authority to award plaintiff's counsel an attorney's fee. We do not agree. G.S. § 6--21 provides in...
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... ... Findings of fact to which no exceptions are taken are deemed supported by competent evidence. McWhirter v. Downs, 8 N.C.App. 50, 173 S.E.2d ... 587 (1970); 1 Strong, N.C.Index 2d, Appeal and Error § 28. Moreover, the evidence in the record, which we ... ...