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Brawley v. Sherrill

Court of Appeals of North Carolina

September 3, 2019

BILLIE CRESS SHERRILL BRAWLEY, as Executrix of the Estate of Zoie S. Deaton a/k/a Zoe Lee Spears Deaton, Plaintiff,
v.
BOBBY VANCE SHERRILL, BRADLEY BRAWLEY, and REBECCA BRAWLEY THOMPSON, Defendants.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by defendant Rebecca Brawley Thompson from order entered 20 June 2018 by Judge Mark E. Klass in Iredell County No. 17 CVS 1941 Superior Court.

          Homesley, Gaines, Dudley & Clodfelter, LLP, by T.C. Homesley, Jr., and Christina E. Clodfelter, for defendant-appellee Bobby Vance Sherrill.

          Jones, Childers, Donaldson & Webb, PLLC, by Mark L. Childers, for defendant-appellant Rebecca Brawley Thompson.

          No brief filed for plaintiff-appellee Billie Cress Sherrill Brawley as Executrix of the Estate of Zoie S. Deaton a/k/a Zoe Lee Spears Deaton.

          No brief filed for defendant-appellee Bradley Brawley.

          ZACHARY, JUDGE.

         This appeal concerns application of the Latin term "per stirpes," which has been employed as a term of art in wills and estates for more than a century in America and adopted from English common law. A will may provide for the distribution of the interest of a beneficiary who does not survive the testator. The use of the term per stirpes directs a specific manner of distribution to the survivors of the predeceased beneficiary.

         On 20 June 2018, the trial court issued a declaratory judgment order interpreting provisions of the testatrix's will, pursuant to which the testatrix conveyed her entire estate to her two children provided that, if either of them predeceased her, that deceased child's interest would be devised to "my grandchildren, per stirpes." Defendant-Appellant Rebecca Brawley Thompson ("Rebecca") argues on appeal that, because the will is clear and unambiguous, the trial court erred in construing the testatrix's intent as to this provision. After careful review of the will and applicable law, we reverse.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 30 April 1968, Zoie S. Deaton ("Testatrix") executed her last written will and testament, which provides, in relevant part:

ITEM I: I give devise and bequeath all of my estate and property . . . to my children, Billie Cress Sherrill Brawley and Bobby Ray Sherrill, if they are living at the time of my demise, to be theirs absolutely and in fee simple, share and share alike.
ITEM II: If either of my children shall predecease me, I direct that either his or her share shall go to my grandchildren, per stirpes.

         At the time of Testatrix's death, her son Bobby Ray Sherrill ("Bobby Ray") was no longer living, but was survived by one child, Defendant-Appellee Bobby Vance Sherrill ("Bobby Vance"). Testatrix's daughter Billie Cress Sherrill Brawley ("Billie Cress") survived her, and her two children, Rebecca and Bradley Brawley ("Bradley"), also survived Testatrix. In sum, at the time of her death, Testatrix had one living child and three living grandchildren.

         Billie Cress was named executrix of the estate. She filed an action for declaratory judgment, requesting that the trial court construe the terms of the will. Specifically, Billie Cress asked the trial court to determine whether Bobby Ray's share under Item II of the will vested solely in his son, Bobby Vance, or in all three of Testatrix's grandchildren. The parties did not dispute Billie Cress's share in the estate.

         The trial court entered judgment determining[1] that Testatrix's intent under Item II was to "create two branches for distribution purposes," one branch going to Billie Cress and the other to Bobby Ray. Consistent with this intent, the trial court concluded that Bobby Ray's one-half share in the estate vested solely in his son ...


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