{ "id": 8527628, "name": "THOMAS H. RUSSELL and SUSAN ELIZABETH RUSSELL SISSON, Plaintiffs v. CORA C. RUSSELL and NANCY D. RUSSELL, Defendants", "name_abbreviation": "Russell v. Russell", "decision_date": "1991-01-15", "docket_number": "No. 903SC147", "first_page": "284", "last_page": "291", "citations": [ { "type": "official", "cite": "101 N.C. App. 284" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "79 ALR2d 1438", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "86 ALR2d 12", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "84 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "241 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603099 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/241/0116-01" ] }, { "cite": "178 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "278 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559549 ], "year": 1971, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0001-01" ] }, { "cite": "366 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523838 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0558-01" ] }, { "cite": "328 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524638 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0368-01" ] }, { "cite": "148 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558848 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0209-01" ] }, { "cite": "222 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569384, 8569473, 8569432, 8569348 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0302-02", "/nc/289/0302-04", "/nc/289/0302-03", "/nc/289/0302-01" ] }, { "cite": "220 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "28 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547464 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/28/0178-01" ] }, { "cite": "200 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561942 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0375-01" ] }, { "cite": "222 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553670 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0014-01" ] }, { "cite": "368 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512833, 2516515, 2518727, 2513198, 2515154 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0325-05", "/nc/322/0325-02", "/nc/322/0325-01", "/nc/322/0325-03", "/nc/322/0325-04" ] }, { "cite": "364 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "88 N.C. App. 741", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359099 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/88/0741-01" ] }, { "cite": "224 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "621" } ], "opinion_index": 1 }, { "cite": "290 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560188 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "81" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0075-01" ] }, { "cite": "115 S.E. 887", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 1 }, { "cite": "185 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655220 ], "year": 1923, "opinion_index": 1, "case_paths": [ "/nc/185/0040-01" ] } ], "analysis": { "cardinality": 626, "char_count": 15193, "ocr_confidence": 0.773, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7505819837372758 }, "sha256": "ead6f1f718cbe7ec78b7e300dc83d0e54bbf82cadfbd22ce413785f59aaeeae4", "simhash": "1:cccde714c4774493", "word_count": 2608 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES concurs.", "Judge PARKER concurs in the result." ], "parties": [ "THOMAS H. RUSSELL and SUSAN ELIZABETH RUSSELL SISSON, Plaintiffs v. CORA C. RUSSELL and NANCY D. RUSSELL, Defendants" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe pertinent facts are as follows: Nat Russell (hereinafter \u201ctestator\u201d) executed a will on 8 September 1948. He died on 29 March 1951. Shortly thereafter on 3 April 1951, the will was probated. The disputed provision of the will reads as follows:\nI give and devise to my beloved wife, Cora C. Russell, the following real estate, to wit: [real estate described] to have and to hold to afore sescribed [sic] properties to her, said Cora C. Russell, for the period of her natural life, and at her death to my daughter, Nancy D. Russell, to have and to hold the same to her and the heirs of her body; however, in the event of the death of my said daughter without bodily heirs, then and in that event I give and devise said properties to my heirs-at-law to be divided between them equally, share and share alike, surviving children of deceased parents to have the part said parent would have taken had he or she lived, to have and to hold the same to them and their heirs in fee simple, subject to the life estate of the said Cora C. Russell.\nNat Russell was married two times. By his first marriage, he had two children, Thomas Russell and Susan Russell Sisson, the plaintiffs. His second marriage to Cora C. Russell resulted in the birth of one child, Nancy D. Russell. No other children were born of Nat Russell. At his death, Mr. Russell was survived by his wife Cora, and his three children, Thomas, Susan and Nancy.\nAt the time Nat Russell executed the will in question, plaintiffs were grown and living on their own. Defendant Nancy Russell, however, was approximately 15 years old and living at home.\nCora Russell, the appointed Executrix, administered her husband\u2019s estate until its conclusion on 16 May 1953.\nNancy Russell is now approximately 56 years old, is unmarried, and has not given birth to a child or children.\nCora Russell has conveyed her life estate to Nancy Russell.\nNancy Russell is now claiming to own all of the property, in fee simple.\nOn appeal, plaintiffs bring forth two questions for review. Defendants bring forth four additional questions on cross-appeal. For the sake of clarity, we will address the legal questions raised by plaintiffs first. We then shall discuss defendants\u2019 questions.\nPlaintiffs\u2019 Appeal\nAt the outset, we note that the testator died on 29 March 1951 and the Intestate Succession Act was not passed until 1959, therefore, the case sub judice is governed by the Statute of Descents, G.S. \u00a7 29-1 (1943). As our current statute provides that \u201c[e]very person seized of an estate in tail shall be deemed to be seized of the same in fee simple,\u201d G.S. \u00a7 41-1 (1984) is also applicable to the interpretation of the disputed provision of Nat Russell\u2019s will.\nInitially, plaintiffs contend that the trial court erred in failing to find that the will and the intent of the testator, by the use of the terms \u201cheirs of her body\u201d and \u201cbodily heirs\u201d meant not just children, but \u201cnatural children.\u201d Plaintiffs, however, in their complaint, only assert a claim for declaratory relief as to the relative interests of the parties. The complaint does not raise the issue of whether defendant Nancy Russell could satisfy the condition in her father\u2019s will by adopting a child as opposed to giving birth to a child. Thus, this issue cannot be raised for the first time on appeal. Bryant v. Eagan, 88 N.C. App. 741, 364 S.E.2d 704, cert. denied, 322 N.C. 325, 368 S.E.2d 863 (1988).\nAssuming, arguendo, that this issue was properly raised, the applicable rule provides that the word \u201cchild\u201d standing alone \u201cshall be construed to include any adopted person unless the contrary plainly appears by the terms of the will itself.\u201d Simpson v. Simpson, 29 N.C. App. 14, 17, 222 S.E.2d 747, 748 (1976). \u201cThis rule of construction shall apply whether the will was executed before or after the final order of adoption and whether the will was executed before or after the enactment of the statute.\u201d Id., citing Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973); Stoney v. MacDougall, 28 N.C. App. 178, 220 S.E.2d 368 (1975), cert. denied, 289 N.C. 302, 222 S.E.2d 702 (1976). Therefore, any child adopted by Nancy will satisfy the conditions of her father\u2019s will and can inherit as a bodily heir. See also G.S. \u00a7 48-23(3) and Simpson, 29 N.C. App. 14, 222 S.E.2d 747. This assignment is overruled.\nBy Assignment of Error number two, plaintiffs contend that the trial court erred in concluding that the testator intended the words:\nto my heirs at law, to be divided between them equally, share and share alike, surviving children of deceased parents to have the part their parents would have taken had he or she lived, to have and to hold the same to them and their heirs in fee simple, subject to the life estate of Cora C. Russell\nto include Cora Russell as his \u201cheir-at-law.\u201d We agree.\nUnquestionably, the distribution of an estate among heirs and distributees is governed by the law as it existed at the time of the death of the intestate. Johnson v. Blackwelder, 267 N.C. 209, 148 S.E.2d 30 (1966). Pursuant to the Statute of Descents, a husband and wife could not inherit real property directly from each other. Wiggins, Wills and Administration of Estates in North Carolina \u00a7 178 (1983). Where, however, \u201cany person dies intestate leaving none who can claim as an heir to the deceased person, but leaving surviving a widow or husband, such widow or husband shall be deemed an heir and as such inherit his estate.\u201d G.S. \u00a7 29-1, Rule 8. As Nat Russell died testate with heirs, this general rule is inapplicable to the case sub judice. Thus, Cora Russell is not an heir of Nat Russell.\nTo determine the relative interests of the parties as created by the testator, we must first examine the disputed devise which reads in pertinent part:\n... I give and devise to my beloved wife, Cora C. Russell ... for the period of her natural life, and at her death to my daughter, Nancy D. Russell, to have and to hold the same to her and the heirs of her body; however, in the event of the death of my said daughter without bodily heirs, then and in that event I give and devise said properties to my heirs-at-law ....\nNext, we must look to the intestacy law in effect at the time of Nat Russell\u2019s death. Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985). And finally, we are guided by the intent of the testator. Slater v. Lineberry, 89 N.C. App. 558, 366 S.E.2d 608 (1988). Such intent is ascertained\nfrom the . . . language and in light of conditions and circumstances existing at the time the will was made. In considering the language used, technical words will be presumed to have been used in their technical sense unless the language of the will evidences a contrary intent; however, when the t\u00e9stator obviously does not intend to use words in their technical sense, they will be given their ordinary and popular meaning. In any event, the use of particular words, clauses or sentences must yield to the purpose and intent of the testator as found in the whole will. (Citations omitted.)\nKale v. Forrest, 278 N.C. 1, 6, 178 S.E.2d 622, 625 (1971). Ordinarily, the word \u201cheirs\u201d is \u201cused to describe those persons who are entitled under the intestate succession statute to the decedent\u2019s property upon his death intestate.\u201d Wiggins, Wills and Administration of Estates in North Carolina \u00a7 134 (1983).\nThe devise to Cora Russell for her natural life and at her death to the testator\u2019s daughter and \u201cher bodily heirs,\u201d vests a life estate in the land to Cora Russell, with an estate tail in remainder to Nancy Russell. Nancy\u2019s interest under the purview of G.S. \u00a7 41-1 is converted into a defeasible fee simple. Thomas Russell and Susan Russell Sisson therefore have a contingent remainder. The contingency that will activate this remainder is Nancy\u2019s death without bodily heirs. See Davis v. Brown, 241 N.C. 116, 84 S.E.2d 334 (1954). At such time, this contingent limitation will defeat Nancy\u2019s fee simple, and title will pass to Nat Russell\u2019s heirs-at-law.\nThe parties\u2019 identifiable interests have not changed despite the fact that Cora Russell has conveyed her present life estate interest to her daughter, Nancy. Nancy Russell\u2019s interest has merely been accelerated. In the event that Nancy dies without bodily heirs, her fee simple estate will be defeated.\nWe conclude, however, that Nat Russell did not use the words \u201cheirs-at-law\u201d in the technical sense. This is evidenced by the special provision contained in the will entitling Nancy and her children to the real estate to the exclusion of Thomas and Susan and their heirs. We believe a strict reading of the disputed provision would produce a result in opposition to Nat Russell\u2019s testamentary intent and could result in someone, other than a lineal descendant of Nancy, taking her share when the language in the will suggests an intention to keep the property in the family. Moreover, we are unable to adopt defendants\u2019 overall position that Nat Russell intended for Nancy to take the real property as an heir-at-law as a result of a condition that would have initially deprived her of the property. Thus, we conclude that Nat Russell meant that if Nancy had children, she and her children would take the property but Susan and Thomas would share the property equally in the event that Nancy died without having children.\nIn summary, we find that Cora Russell is not Nat Russell\u2019s heir-at-law. We also find that Nancy Russell presently has a fee simple defeasible title to the properties of the testator, Nat Russell, and that her interest could only be defeated and therefore equally divided by Thomas Russell and Susan Russell Sisson in the event that she dies without having children.\nDefendants\u2019 Appeal\nIn light of our holdings above, we find it unnecessary to address the questions raised in defendants\u2019 cross-appeal. Suffice it to say, the trial court\u2019s holdings that the Rule in Wild\u2019s case does not apply and that the issue of the parties\u2019 rights could be determined were both proper. The trial court erred, however, by holding that the term \u201cheirs of her body\u201d did not create a fee tail which was converted by the operation of the statute into a fee simple estate.\nThe judgment of the court below is\nAffirmed in part; Reversed in part.\nJudge EAGLES concurs.\nJudge PARKER concurs in the result.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge PARKER\nconcurring in the result.\nI concur in the result only. In my view the language of testator\u2019s Will did not create a fee tail estate in Nancy Russell and G.S. 41-1, therefore, has no applicability.\nI am also of the opinion that the complaint for declaratory judgment to determine the relative interests of the parties under Nat H. Russell\u2019s Will did in fact raise the issue of whether bodily heirs would include both natural and adopted children of defendant Nancy Russell. Paragraph 5 of the complaint asserts plaintiffs\u2019 position that Nancy Russell must die survived by natural children. The prayer for relief seeks a declaration that \u201cif she is not survived by natural children . . . the real estate will be solely the property of Thomas H. Russell and Susan Elizabeth Russell Sisson, their heirs and assigns as tenants in common . . . .\u201d Therefore, this issue was properly before the trial court, and plaintiffs preserved their right to raise it on appeal.\nFurther, plaintiffs\u2019 interest under the Will is, in my opinion, an executory interest rather than a contingent remainder. The interests of the parties created by the Will in testator\u2019s property were as follows: (i) Cora Russell received a life estate; (ii) Nancy Russell received a vested remainder in the fee simple defeasible upon her death without a child surviving her; (iii) Thomas Russell and Elizabeth Sisson received an executory interest in the fee simple which will take effect in the event the contingent limitation occurs, namely that Nancy Russell dies without a child surviving her. See Ziegler v. Love, 185 N.C. 40, 115 S.E. 887 (1923). As noted by the majority, under the current statute, G.S. 48-23, the child may be an adopted child.\nFinally, under the holding in White v. Alexander, 290 N.C. 75, 224 S.E.2d 617 (1976), I concur in that portion of the majority opinion holding that testator\u2019s heirs at law to take in the event Nancy dies without a child surviving her would not include Nancy or persons taking under her. Additionally, contrary to defendants\u2019 contention, under White, testator\u2019s heirs at law for purposes of who shares in the executory interest, should the contingency occur, are determined at the time of the testator\u2019s death. 290 N.C. at 81, 224 S.E.2d at 621.", "type": "concurrence", "author": "Judge PARKER" } ], "attorneys": [ "Wheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., by Claud R. Wheatly, Jr., for plaintiffs-appellants.", "L. Patten Mason, P.A., by L. Patten Mason, for defendants-appellees." ], "corrections": "", "head_matter": "THOMAS H. RUSSELL and SUSAN ELIZABETH RUSSELL SISSON, Plaintiffs v. CORA C. RUSSELL and NANCY D. RUSSELL, Defendants\nNo. 903SC147\n(Filed 15 January 1991)\n1. Wills \u00a7 48 (NCI3d)\u2014 bodily heirs \u2014 adopted children\nWhere testator\u2019s will devised a remainder to his daughter \u201cand the heirs of her body\u201d and further provided that \u201cin the event of the death of my said daughter without bodily heirs, then and in that event I give and devise said properties to my heirs-at-law,\u201d any child adopted by the daughter could satisfy the conditions of the will and inherit as a bodily heir.\nAm Jur 2d, Adoption \u00a7 98.\nAdopted child as within class in testamentary gift. 86 ALR2d 12.\n2. Wills \u00a7 43 (NCI3d)\u2014 death in 1951 \u2014 testator\u2019s wife not heir-at-law under will\nThe wife of a testator who died in 1951 was not an \u201cheir-at-law\u201d under his will where the will devised a life estate to testator\u2019s wife with the remainder to his daughter \u201cand the heirs of her body\u201d and further provided that \u201cin the event of the death of my said daughter without bodily heirs, then and in that event I give and devise said properties to my heirs-at-law\u201d in fee simple. N.C.G.S. \u00a7 29-1, Rule 8 (1943).\nAm Jur 2d, Wills \u00a7 1211.\nHusband or wife as heir within provision of will or trust. 79 ALR2d 1438.\n3. Wills \u00a7 36.1 (NCI3d)\u2014 construction of will \u2014 life estate \u2014 estate tail \u2014 defeasible fee\nWhere the will of a testator who died in 1951 devised a life estate to his wife with the remainder to his daughter \u201cand the heirs of her body\u201d and further provided that \u201cin the event of the death of my said daughter without bodily heirs, then and in that event I give and devise said properties to my heirs-at-law\u201d in fee simple, the will vested a life estate in the wife with an estate tail in remainder to the daughter which was converted by N.C.G.S. \u00a7 41-1 into a fee simple defeasible upon her death without bodily heirs, and testator\u2019s other two children received a remainder contingent upon the daughter\u2019s death without bodily heirs.\nAm Jur 2d, Estates \u00a7\u00a7 43, 45-47.\nJudge PARKER concurs in the result.\nAppeal by plaintiffs and cross-appeal by defendants from judgment entered 14 November 1989 by Judge William C. Griffin in CARTERET County Superior Court. Heard in the Court of Appeals 18 September 1990.\nPlaintiffs appeal and defendants cross-appeal the trial court\u2019s interpretations of the relative interests of the parties as to real property described in the will of Nat Russell.\nWheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., by Claud R. Wheatly, Jr., for plaintiffs-appellants.\nL. Patten Mason, P.A., by L. Patten Mason, for defendants-appellees." }, "file_name": "0284-01", "first_page_order": 312, "last_page_order": 319 }