BILLIE CRESS SHERRILL BRAWLEY, as Executrix of the Estate of Zoie S. Deaton a/k/a Zoe Lee Spears Deaton, Plaintiff,
BOBBY VANCE SHERRILL, BRADLEY BRAWLEY, and REBECCA BRAWLEY THOMPSON, Defendants.
in the Court of Appeals 13 March 2019.
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.
Childers, Donaldson & Webb, PLLC, by Mark L. Childers,
for defendant-appellant Rebecca Brawley Thompson.
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.
brief filed for defendant-appellee Bradley Brawley.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
April 1968, Zoie S. Deaton ("Testatrix") executed
her last written will and testament, which provides, in
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
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.
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.
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.
trial court entered judgment determining 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 ...