Misenheimer v. Misenheimer

• Court: North Carolina Supreme Court
• Writing for the Court: MARTIN; VAUGHN; EXUM; MEYER
• Citation: Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195 (N.C. 1985)
• Decision Date: 30 January 1985
• Docket Number: No. 368PA83,368PA83
• Parties: Donald E. MISENHEIMER, Executor under Will of Isam R. Misenheimer v. John E. MISENHEIMER, Carolyn M. Prince, Donald E. Misenheimer, Thomas M. Misenheimer, Sylvia M. Gruendler, Sharon M. Misenheimer, Kenneth R. Misenheimer, John E. Misenheimer, Jr. and Samuel Misenheimer, minor.

Page 195

325 S.E.2d 195

312 N.C. 692

Donald E. MISENHEIMER, Executor under Will of Isam R. Misenheimer v. John E. MISENHEIMER, Carolyn M. Prince, Donald E Misenheimer, Thomas M. Misenheimer, Sylvia M. Gruendler Sharon M. Misenheimer, Kenneth R. Misenheimer, John E Misenheimer, Jr. and Samuel Misenheimer, minor.

No. 368PA83.

Supreme Court of North Carolina.

Jan. 30, 1985.

Henderson & Shuford by Robert E. Henderson, Charlotte, for plaintiff-appellant.

Jo Hill Dobbins, Charlotte, for defendants-appellees, John E. Misenheimer, Jr. and Samuel Misenheimer.

MARTIN, Justice.

Isam R. Misenheimer was murdered by his son John. ¹ After providing for payment of his debts, funeral and other expenses, Isam's will left his residuary estate to his eight surviving children, including John, in equal shares. John has two sons. The question presented by this action for a declaratory judgment is how to distribute John's share in light of the "slayer statute," article 3 of chapter 31A of the General Statutes of North Carolina, which bars one who "willfully and unlawfully" kills another as principal or accessory from sharing in the other's estate.

Articles I and II of Isam Misenheimer's will provide for the payment of debts, estate expenses, and taxes. Article IV appoints Isam's son Donald executor. Article V grants powers to the executor. The will's only remaining article, III, provides:

DISPOSITION OF RESIDUE

I will, devise and bequeath all the residue and remainder of the property which I may own at the time of my death, real or personal, tangible and intangible, of whatsoever nature and wheresoever situated, including all property which I may acquire or become entitled to after the execution of this Will, and including any property over or concerning which I may have any power of appointment unto the following named persons absolutely and in fee simple, share and share alike:

1. Carolyn M. Prince

2. Johny E. Misenheimer

3. Donald E. Misenheimer

4. Thomas M. Misenheimer

5. James C. Misenheimer

6. Sylvia M. Misenheimer

7. Sharon M. Misenheimer

8. Kenneth R. Misenheimer

The testator was survived by all eight children named in Article III, including John. John's two children, John E. and Samuel, are appellees herein.

None of the parties to this appeal dispute that John murdered the testator and is a "slayer" within the meaning of N.C.G.S. 31A-3:

Definitions. As used in this Article, unless the context otherwise requires, the term--

....

(3) "Slayer" means

a. Any person who by a court of competent jurisdiction shall have been convicted as a principal or accessory before the fact of the willful and unlawful killing of another person ...

N.C.G.S. 31A-4 provides:

Slayer barred from testate or intestate succession and other rights. The slayer shall be deemed to have died immediately prior to the death of the decedent and the following rules shall apply:

....

(3) Where the decedent dies testate as to property which would have passed to the slayer pursuant to the will, such property shall pass as if the decedent had died intestate with respect thereto, unless otherwise disposed of by the will.

The disagreements in the present case concern whether John's share is "otherwise disposed of by the will" as that phrase is used in the slayer statute and how N.C.G.S. 31-42, the anti-lapse statute, is to be applied.

The anti-lapse statute applies to all wills and provides means by which property is to be distributed in the event of "failure of devises and legacies by lapse or otherwise." In relevant part the statute provides:

§ 31-42. Failure of devises and legacies by lapse or otherwise; renunciation. (a) Devolution of Devise or Legacy to Person Predeceasing Testator.--Unless a contrary intent is indicated by the will, where a devise or legacy of any interest in property is given to a devisee or legatee who would have taken individually had he survived the testator, and he dies survived by issue before the testator, whether he dies before or after the making of the will, such devise or legacy shall pass by substitution to such issue of the devisee or legatee as survive the testator in all cases where such issue of the deceased devisee or legatee would have been an heir of the testator under the provisions of the Intestate Succession Act had there been no will.

....

(c) Devolution of void, revoked, or lapsed devises or legacies.--If subsections (a) and (b) above are not applicable and if a contrary intent is not indicated by the will:

(1) Where a devise or legacy of any interest in property is void, is revoked, or lapses or which for any other reason fails to take effect, such a devise or legacy shall pass:

a. Under the residuary clause of the will applicable to real property in case of such devise, or applicable to personal property in case of such legacy, or

b. As if the testator had died intestate with respect thereto when there is no such applicable residuary clause; and

(2) Where a residuary devise or legacy is void, revoked, lapsed or for any other reason fails to take effect with respect to any devisee or legatee named in the residuary clause itself or a member of a class described therein, then such devise or legacy shall continue as a part of the residue and shall pass to the other residuary devisees or legatees if any; or, if none, shall pass as if the testator had died intestate with respect thereto.

The parties to the instant appeal take the following positions. Plaintiff executor argues: (1) By the manner in which the testator structured his residuary clause, he "otherwise disposed of" John's share, which is now void because of the slayer statute, so that John's share is to be divided equally among the other named residuary beneficiaries. (2) Alternatively, if the anti-lapse statute applies, then section (c)(2) of that statute controls so as to reach the same result. John's children argue: (1) John's share is "otherwise disposed of by the will" within the meaning of the slayer statute. (2) The share must pass under section (a) of the anti-lapse statute because under the slayer statute John is conclusively presumed to have predeceased his father. (3) Therefore, John's two children take John's entire one-eighth interest in the residuary estate by substitution. The Court of Appeals essentially followed the reasoning urged by John's children and reached the result dictated by it.

We agree with the Court of Appeals and therefore hold that under the slayer and anti-lapse statutes John's two children are entitled to divide the entire one-eighth share of decedent's estate which their father would have inherited had he not killed the decedent. It is elementary that the primary object in interpreting a will is to give effect to the intention of the testator. Wilson v. Church, 284 N.C. 284, 200 S.E.2d 769 (1973). It is a long-standing policy of the State of North Carolina to construe a will with the presumption that the testator did not intend to die intestate with respect to any part of his property. Quickel v. Quickel, 261 N.C. 696, 136 S.E.2d 52 (1964). We hold that Isam Misenheimer's will "otherwise disposed of" the slayer's interest in the decedent's estate within the meaning of N.C.G.S. 31A-4(3). The residuary clause of the will states that decedent:

will[s], devise[s] and bequeath[es] all the residue and remainder of the property which I may own at the time of my death ... unto the following named persons absolutely and in fee simple, share and share alike:

1. Carolyn M. Prince

2. Johny E. Misenheimer

3. Donald E. Misenheimer

4. Thomas M. Misenheimer

5. James C. Misenheimer

6. Sylvia M. Misenheimer

7. Sharon M. Misenheimer

8. Kenneth R. Misenheimer (Emphases added.) As this Court stated in Howell v. Mehegan, 174 N.C. 64, 67, 93 S.E. 438, 440 (1917), "no contrary intent appearing [in the will], a void or lapsed legacy or devise passes under a general residuary clause ...." Isam Misenheimer did not indicate any intent that a lapsed share would pass otherwise than through the will's residuary clause. To the contrary, his expressed intent is that all remaining property should pass under the residuary clause.

N.C.G.S. 31A-4(3) mandates that the slayer, John E. Misenheimer, is conclusively presumed to have predeceased the testator for purposes of distribution of property under the will. Thus his legacy from decedent fails and must be distributed through the residuary clause of decedent's will. To determine specifically how John's share is to be divided, we must turn to the statute governing the disposition of failed legacies under a residuary clause.

As we stated earlier, the anti-lapse statute, N.C.G.S. 31-42, applies to all wills and provides means by which property is to be distributed in the event of "failure of devises and legacies by lapse or otherwise." (Emphasis added.) It is presumed that a will is executed in contemplation of applicable statutes. Trust Co. v. Drug Co., 217 N.C. 502, 8 S.E.2d 593 (1940). Because of the failure of John's legacy, the property that would have gone to him under the will had he not been convicted of killing his father must be distributed in accord with N.C.G.S. 31-42(a). In the present case, as John's two children are alive and would have been heirs of Isam Misenheimer had he died intestate, John's failed legacy must pass by substitution to them in accordance with this statute. Because of the conclusive presumption in N.C.G.S. 31A-4(3) that the slayer predeceased the testator, N.C.G.S. 31-42(a), not N.C.G.S. 31-42(c)(2), applies. It was the intent of the General Assembly that the presumption in 31A-4(3) be equivalent to actual death for all purposes of determining the disposition of property of the testator. See Special Report of the General Statutes Commission on an Act to be entitled "Acts Barring Property Rights" (1961).

If we were to hold that N.C.G.S. 31-42(c)(2) applies merely because the slayer does not, in fact, predecease the slain, we would...