Redd v. Taylor, 286

• Decision Date: 12 April 1967
• Docket Number: No. 286,286
• Citation: 153 S.E.2d 761,270 N.C. 14
• Court: North Carolina Supreme Court
• Parties: Warren REDD, Jane Redd and Charles J. Henderson, Co-Executors of the Estate of Bessie Flowe Redd, Deceased, Plaintiffs, v. Theodocia TAYLOR, Queens College, Incorporated, a Corporation, Barium SpringsHome for Children, Inc., a corporation, Dolphus Orr, Jr., Division of WorldMissions of the Board of Missions of the Methodist Church, a Corporation, Boardof WorldMissions of the Presbyterian Church in the United States, a Corporation, JackN. Norwood, One of a class composing all of the next of kin and heirs at law ofBessie Flowe Redd, Deceased, James H. Carson, Jr., Guardian ad litem for anyperson,persons, firms, or corporations formed or unformed, designated or making anyclaims to the estate of Bessie Flowe Redd, Deceased, under the name 'WorldMissions', Lloyd F. Baucom, Guardian ad litem of any unknown or unborn heirs atlaw, or minors, orany unknown person or persons non compos mentis, or imprisoned, or residingoutside the State of North Carolina, or otherwise under legal disability,claiming as next of kin and heirs at law of Bessie Flowe Redd, Deceased,Original Defendants, and Warren Redd and Jane Redd, Additional Defendants.

Page 761

153 S.E.2d 761

270 N.C. 14

Warren REDD, Jane Redd and Charles J. Henderson Co-Executors of the Estate of Bessie Flowe Redd Deceased, Plaintiffs, v. Theodocia TAYLOR, Queens College, Incorporated, a Corporation, Barium SpringsHome for Children, Inc., a corporation, Dolphus Orr, Jr., Division of WorldMissions of the Board of Missions of the Methodist Church, a Corporation, Boardof WorldMissions of the Presbyterian Church in the United States, a Corporation, JackN. Norwood One of a class composing all of the next of kin and heirs at law ofBessie Flowe Redd, Deceased, James H. Carson, Jr Guardian ad litem for anyperson,persons, firms, or corporations formed or unformed, designated or making anyclaims to the estate of Bessie Flowe Redd, Deceased, under the name 'WorldMissions', Lloyd F. Baucom, Guardian ad litem of any unknown or unborn heirs atlaw, or minors, orany unknown person or persons non compos mentis, or imprisoned, or residingoutside the State of North Carolina, or otherwise under legal disability,claiming as next of kin and heirs at law of Bessie Flowe Redd, Deceased,Original Defendants, and Warren Redd and Jane Redd, Additional Defendants.

No. 286.

Supreme Court of North Carolina.

April 12, 1967.

Ray Rankin and Henry E. Fisher, Charlotte, for Jack N. Norwood, defendant appellant.

Lloyd F. Baucom, Charlotte, Guardian ad litem, defendant appellant.

Boyle, Alexander & Carmichael, Charlotte, for Warren Redd and Jane Redd, additional defendant appellants.

Helms, Mulliss, McMillan & Johnston, Charlotte, for Board of World Missions of the Presbyterian Church in the United States, defendant appellee.

Ervin, Horack, Snepp & McCartha, Charlotte, for Queens College, Inc., defendant appellee.

W. R. Pope, Mooresville, for Barium Springs Home for Children, Inc., defendant appellee.

SHARP, Justice.

Appellants Jack N. Norwood, as the representative of the heirs at law of Mrs. Redd, and Lloyd F. Baucom, guardian Ad litem for her unknown heirs, contend that both the devise to Warren and Jane Redd and the gift to World Missions are void 'for indefiniteness and ambiguity'; that parol evidence is inadmissible to effect identification; and that these purported gifts pass as undevised property to Mrs. Redd's heirs at law. Appellants Warren and Jane Redd contend that no ambiguity exists in the devise to them; that it gave them the right to take any part or all of the farm on Albemarle Road; and that the court erred in admitting evidence which contradicted the plain terms of the will. None of these contentions can be sustained.

Mrs. Redd's gift to 'World Missions' and her devise to Warren and Jane Redd of 'the part of the farm on Albemarle Road that they want in fee simple' created latent ambiguities, which could be removed by parol testimony.

A latent ambiguity occurs when the words of an instrument are plain and intelligible, but extrinsic facts are necessary to identify the person or thing mentioned therein. A latent ambiguity, therefore, presents a question of identity--a fitting of the description in the will to the person or thing the testator intended. As Pearson, J. (later C.J.), said in President and Directors of the North Carolina Institute, etc. v. Norwood, 45 N.C. 65, 68, '(I)n cases of Latent ambiguity, evidence Dehors is not only competent, but Necessary * * * for how can any instrument identify a person or thing? It can describe, but the identification, the fitting of the description, can only be done by evidence Dehors.' Accord, McDaniel v. King, 90 N.C. 597; Kincaid v. Lowe, 62 N.C. 42; Note, 35 N.C.L.Rev. 167 (1956); 95 C.J.S. Wills § 636 (1957); see Wachovia Bank and Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246.

In the bequest or devise to World Missions, testatrix was obviously using a proper name and was designating a particular organization as the object of her bounty. Here, the capitalization negates any idea that she was merely stating a purpose to aid world missions, or foreign missions, in general. Bridges v. Pleasants, 39 N.C. 26. When both Division of World Missions of the Board of Missions of the Methodist Church, Inc., and Board of World Missions of the Presbyterian Church in the United States, Inc., claimed to be the designated beneficiary, the executors were confronted with one of the classic examples of a latent ambiguity--the situation in which two 'persons allege themselves to be the identical A.B. meant by the testator, or, as is said in the books, as if there be two 'Cousin Johns. " President and Directors of the North Carolina Institute, etc. v. Norwood, supra at 70.

In McLeod v. Jones, 159 N.C. 74, 74 S.E. 733, testator devised one-third of his residuary estate to Home Missions of the Baptist denomination, one-third to Foreign Missions of the Baptist denomination, and one-third to Thomasville Orphanage. On consideration of the facts in evidence, the habits and customs of the testator, his church affiliation, and His direct declarations, the jury found that the intended donees were the Home Mission Board of the Southern Baptist Convention, the Foreign Mission Board of the Southern Baptist Convention, and the trustees of the Thomasville Baptist Orphanage, and the judgment so decreed. In affirming his judgment this court said:

'Under our decision the facts in evidence present an instance of a latent ambiguity, requiring and permitting the reception of extrinsic evidence, not to alter or affect the construction, but to apply the description to the intended donee, as designated by the language appearing in the will. * * * And in such cases and for such purpose authority here and elsewhere is to the effect that the surrounding circumstances as well as the declarations of the testator are relevant to the inquiry and especially where, as in this case, they were made at the time the will was executed.' Id. at 76, 74 S.E. at 734.

Accord, Thomas v. Summers, 189 N.C. 74, 126 S.E. 105; Fulwood v. Fulwood, 161 N.C. 601, 77 S.E. 763. Annot., Admissibility of extrinsic evidence to aid interpretation of will, 94 A.L.R. 26, 275. See Thomas v. Lines, 83 N.C. 191, 197. Declarations of intent by a testator, of course, are not admissible to control the construction of his will or to vary, contradict, or add to its terms. Holmes v. York, 203 N.C. 709, 166 S.E. 889; Reynolds v. Safe Deposit & Trust Co. of Baltimore, 201 N.C. 267, 159 S.E. 416; McDaniel v. King, supra; Annot., 94 A.L.R. 26, 272.

The 'circumstances attendant' when Mrs. Redd wrote her will (see Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 540, 96 S.E.2d 690, 694)--the evidence with reference to her church...