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Adcock v. Perry

Filed: May 4, 1982.

RUBY P. ADCOCK AND HUSBAND, HENRY CARLTON ADCOCK; ELSIE CHRISTINE P. HANAVAN AND HUSBAND, JOHN F. HANAVAN; ANNIE BELLE C. PERRY, WIDOW; NANCY P. JACOBS AND HUSBAND, CLAUDE JACOBS, JR.; AND JOHN THOMAS PERRY, DIVORCED
v.
JAMES T. PERRY AND WIFE, HATTIE MAE H. PERRY; WILLIAM LYON WHITFIELD AND WIFE, BEATRICE B. WHITFIELD; JACK P. WHITFIELD, UNMARRIED; DONALD WAYNE WHITFIELD AND WIFE, JOHNNIE T. WHITFIELD; AND JEAN H. BARBEE AND HUSBAND, HOWARD J. BARBEE



On discretionary review of the decision of the Court of Appeals [ Britt, Justice. Justice Mitchell dissenting.

Britt

As was stipulated by the parties at trial, the sole issue for determination by this court is whether Annie S. Perry was devised the fee simple title to the real property in question under the last will and testament of W. T. Perry. The trial court and the Court of Appeals answered the issue in the affirmative. We disagree with that answer.

There are several basic rules that are applicable to the interpretation of wills. The most basic rule of will construction is that "the intent of the testator is the polar star that must guide the courts in the interpretation of a will." Wing v. Wachovia Bank & Trust Co., 301 N.C. 456, 272 S.E.2d 90 (1980); Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777 (1951). A second cardinal principle is to give effect to the general intent of the testator as that intent appears from a consideration of the entire instrument, Wilson v. Church, 284 N.C. 284, 200 S.E.2d 769 (1973). A third rule is that the intent of the testator must be ascertained from a consideration of the will as a whole and not merely from consideration of specific items or phrases of the will taken in isolation. Clark v. Conner, 253 N.C. 515, 117 S.E.2d 465 (1960).

The Court of Appeals, in affirming the judgment of the trial court, concluded that W. T. Perry intended to devise his wife fee simple title to his property. In arriving at this conclusion, the Court of Appeals recognized that there are two provisions of the will inconsistent with this interpretation. The first of these is the language in Item 2 limiting the general devise immediately preceding it. That provision provides:

I do hereby give, grant and extend to the said Annie Perry the right to sell or mortgage any part of the real and personal property hereby devised and bequeathed to her in order to provide funds with which to defray her own necessary personal expenses, but she is not given the power to sell, dispose of or mortgage any part of said property for the purpose of aiding or assisting any of her children or any of the members of her family.

The Court of Appeals held that this language was precatory and did not limit the absolute devise in any manner. The second inconsistent provision is Item 3 of the will providing: "After the death

of my said wife, I give, bequeath and devise all of my property remaining to my four children, share and share alike. . . ." The Court of Appeals found Item 3 void as repugnant to the absolute title first given. Carroll v. Herring, 180 N.C. 369.

We disagree with the decision of the Court of Appeals and hold that W. T. Perry clearly intended to devise his wife a life estate only, coupled with a limited power to dispose of the property to meet her personal needs.

In trying to ascertain the intent of the testator, the will is to be considered in its entirety so as to harmonize, if possible, provisions which would otherwise be inconsistent. Joyner v. Duncan, 299 N.C. 565, 264 S.E.2d 76 (1980); Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970). A phrase should not be given a significance which clearly conflicts with the evident intent of the testator as gathered from the four corners of the will and the court will adopt that construction which will uphold the will in all its parts if such course is consistent with the established rules of law and the intention of the testator. Joyner v. Duncan, supra; Johnson v. Salsbury, 232 N.C. 432, 61 S.E.2d 327 (1950).

W. T. Perry's testamentary scheme becomes apparent from a reading of the whole will. While it is clear that he sought to provide his wife with assets she could tap for her support during her lifetime, there were express limitations put on her use of the property devised. While W. T. Perry wanted to ensure his wife's ability to meet her own necessary personal expenses, these assets were not to be used to provide assistance to her children or family. They would inherit what remained after his wife's death. All of the words used by the testator are imperative. None of the language can be considered precatory. The construction of W. T. Perry's will as a devise of a life estate is further buttressed by Items 3 and 4 which specifically designate the remaindermen and the distribution of their shares should they not survive the life tenant.

The interpretation given W. T. Perry's will by the Court of Appeals creates sharp conflict between several provisions in the will. Indeed, it results in a majority of the will's provisions being either void as repugnant to the presumed absolute devise or ...


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