Betts v. Parrish
Betts v. Parrish
Opinion of the Court
We do not believe the will of Mr. Sanderford is ambiguous. Item Four provides that in the event his wife and mother should both predecease him, his estate would go to the plaintiffs. This contingency did not happen. It may be that the testator wanted the plaintiffs to have a remainder interest in his house and lot under the contingency that occurred, but he did not say so in his will. We are required to discern the intention of the testator from the plain language of the will. According to this language, the plaintiffs do not take any interest in the house and lot.
The canons of construction which the appellees suggest we should follow, such as a will should be construed as to avoid intestacy, a change in language from paragraph to paragraph should be given some significance, and the intention of the testator must be determined from reading the whole will, have no application. These canons of construction are used when a will is ambiguous. In this case, we hold the will is not ambiguous.
The testator and his wife died without issue. The remainder interest in the testator’s real property passes to his mother, Ruby Wilson Ellis. See G.S. 31-42(c)(l)b and G.S. 29-15(3). We reverse and remand for a judgment consistent with this opinion.
Reversed and remanded.
Dissenting Opinion
dissenting.
“[T]he dominant purpose in construing a will is to ascertain and give effect to the testator’s intent.” Bank v. Carpenter, 280 N.C. 705, 707, 187 S.E. 2d 5, 7 (1972). That intent is determined by examining the entire will in light of all surrounding circumstances
I believe the will does permit two interpretations, and that the interpretation which results in complete testacy should prevail. In Item Two the testator bequeathed his personal property to his wife and mother equally, and provided that in the event of the death of one the survivor would take such property in its entirety. He made no such provision with regard to his real property, thereby indicating a clear intent to limit his mother to the life estate therein which he expressly granted.
The testator provided for disposition of both real and personal property. Item Four stated that he devised and bequeathed “all of [his] property.” It is thus evident that he intended to dispose of his entire estate, not that some of it should pass by intestacy.
It is apparent that the draftsman failed to take account of the possibility that the testator’s wife would predecease his mother. It is equally evident, though, that the testator intended that the named nieces and nephew have the property after the death of both his wife and mother.
I vote to affirm.
Reference
- Full Case Name
- WENDY BETTS, ANGIE BETTS, by and through their Guardian ad Litem, SANDRA BETTS PARKER and KENNETH WAYNE O'NEIL v. MARGARET PARRISH, Administratrix CTA of the Estate of Russell W. Sanderford, RUBY WILSON ELLIS, and MILDRED S. POLLARD
- Cited By
- 2 cases
- Status
- Published