{ "id": 8524436, "name": "WAYLAND S. BARNES, Individually and Executor of the Estate of MILDRED L. WILSON, Petitioner v. KEN EVANS, MARIE STERLING, ELLEN NORTHEY O'NEAL, MARGARET POMEROY, VIRGINIA SMITH, PAT DALY, COLERAIN BAPTIST CHURCH, COLERAIN METHODIST CHURCH, BILLY GRAHAM EVANGELICAL ASSOCIATION, J. FRANK WILSON, DOROTHY WILSON, MARGARET STERLING, KAY STERLING ELLIS, RUTH BRISTOW, CAROL BARNES, UNIVERSITY OF NORTH CAROLINA AT GREENSBORO, and Any Unknown and Unnamed Heirs of MILDRED L. WILSON, et als., Respondents", "name_abbreviation": "Barnes v. Evans", "decision_date": "1991-04-02", "docket_number": "No. 906SC37", "first_page": "428", "last_page": "434", "citations": [ { "type": "official", "cite": "102 N.C. App. 428" } ], "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": "27 ALR3d 1406", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "272 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567914 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0456-01" ] }, { "cite": "128 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561244 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0482-01" ] }, { "cite": "299 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563923 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0485-01" ] }, { "cite": "186 S.E. 356", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "210 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626186 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/210/0321-01" ] }, { "cite": "27 ALR3d 1406", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "98 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "300" } ], "opinion_index": 1 }, { "cite": "246 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626118 ], "year": 1957, "pin_cites": [ { "page": "316" } ], "opinion_index": 1, "case_paths": [ "/nc/246/0314-01" ] }, { "cite": "97 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "419" } ], "opinion_index": 1 }, { "cite": "246 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623772 ], "year": 1957, "pin_cites": [ { "page": "58" } ], "opinion_index": 1, "case_paths": [ "/nc/246/0053-01" ] }, { "cite": "23 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "893" } ], "opinion_index": 1 }, { "cite": "222 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631058 ], "year": 1943, "pin_cites": [ { "page": "496" } ], "opinion_index": 1, "case_paths": [ "/nc/222/0492-01" ] }, { "cite": "44 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "522" } ], "opinion_index": 1 }, { "cite": "228 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623933 ], "year": 1947, "pin_cites": [ { "page": "108" } ], "opinion_index": 1, "case_paths": [ "/nc/228/0106-01" ] } ], "analysis": { "cardinality": 688, "char_count": 11878, "ocr_confidence": 0.765, "pagerank": { "raw": 4.1879255356331937e-07, "percentile": 0.9127953019654814 }, "sha256": "d300a0a4adb81050a43b9bf9f7e337fb8d851825aa72ddb4e76946efd7e398e9", "simhash": "1:a34fc0413fd7cfce", "word_count": 1940 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES dissents.", "Judge Lewis concurs." ], "parties": [ "WAYLAND S. BARNES, Individually and Executor of the Estate of MILDRED L. WILSON, Petitioner v. KEN EVANS, MARIE STERLING, ELLEN NORTHEY O\u2019NEAL, MARGARET POMEROY, VIRGINIA SMITH, PAT DALY, COLERAIN BAPTIST CHURCH, COLERAIN METHODIST CHURCH, BILLY GRAHAM EVANGELICAL ASSOCIATION, J. FRANK WILSON, DOROTHY WILSON, MARGARET STERLING, KAY STERLING ELLIS, RUTH BRISTOW, CAROL BARNES, UNIVERSITY OF NORTH CAROLINA AT GREENSBORO, and Any Unknown and Unnamed Heirs of MILDRED L. WILSON, et als., Respondents" ], "opinions": [ { "text": "WELLS, Judge.\nThe University of North Carolina assigns as error the trial court\u2019s ruling that decedent\u2019s certificates of deposit were among property that was not specifically devised. The trial court\u2019s ruling resulted in the certificates of deposit passing by intestate succession rather than passing to the University under the will. The issue here is whether the term \u201cremaining cash and bonds\u201d in Item V of the will includes decedent\u2019s certificates of deposit. We hold that \u201cremaining cash and bonds\u201d includes certificates of deposit.\nWhile, as might be anticipated, the cases are not always consistent, the weight of authority seems to be that the word or term \u201ccash\u201d as used in a will includes bank accounts, both checking and savings and includes certificates of deposit. See Annotation, \u201cWhat Passes Under Terms \u2018Cash, \u2019 \u2018Cash On Hand, \u2019 or \u2018Cash Assets\u2019 \u201d In Will, 27 ALR3d 1406. It has been held that the basic principles which govern other types of bank deposits are applicable to certificates of deposit. 10 Am. Jur. 2d, Banks, Sec. 455. Under generally accepted rules of accounting, certificates of deposit are generally regarded as a specie of cash. See Wilson, Kell & Bedford, Accountant\u2019s Handbook, Sec. 10-2 (5th ed. 1970). Black\u2019s Law Dictionary defines \u201ccertificate of deposit\u201d as \u201c[a] written acknowledgment by a bank or banker of a deposit with promise to pay to depositor, to his order, or to some other person or to his order.\u201d Black\u2019s Law Dictionary, 205 (5th ed. 1979). Black\u2019s defines \u201ccash\u201d as \u201c[m]oney or the equivalent; usually ready money. Currency and coins, negotiable checks, and balances in bank accounts. That which circulates as money.\u201d Black\u2019s Law Dictionary, 196 (5th ed. 1979).\nThus, it appears that the word \u201ccash\u201d is not such a technical one that it will have the same definite and precise meaning in all circumstances. In Heyer v. Bullock, 210 N.C. 321, 186 S.E. 356 (1936), Chief Justice Stacy aptly refers to Justice Holmes\u2019 insightful observation that \u201c[A] word is not a crystal, transparent and unchangeable; it is the skin of a living thought and may vary greatly in color and content according to the circumstances ... in which it is used.\u201d We cannot, therefore, resolve the use of the words \u201cother cash,\u201d as used in Mildred Wilson\u2019s will, by resorting to a narrow, technical definition or interpretation. As instructed by Chief Justice Stacy in Heyer, supra, we must look for the meaning of these words according to the subject treated and the context in which they were used.\nIt is an elemental rule of construction that the intention of the testator is the polar star which must guide the courts in the interpretation of wills. Pittman v. Thomas, 307 N.C. 485, 299 S.E.2d 207 (1983), and cases cited and relied on therein. See also Wachovia Bank & Trust Co. v. Bryant, 258 N.C. 482, 128 S.E.2d 758 (1963).\nThe intent of the testatrix must be gathered from the four corners of the will and the circumstances attending its execution. Pittman, supra. \u201cCircumstances attendant\u201d include the relationship between the testatrix and the beneficiaries named in the will, and the nature and extent of the testator\u2019s property. Pittman, supra.\nIn the case now before us, the testatrix was not survived by a spouse or lineal descendants. Her next of kin were all cousins, the record not disclosing their degree of kin. Ms. Wilson\u2019s will provided for her cousins, her gifts varying from small to quite large, one cousin receiving property of value well in excess of one hundred thousand dollars.\nMs. Wilson disposed of her entire estate, a circumstance which invokes another basic rule of construction of wills that in searching for the testatrix\u2019s intent, the courts are guided by the presumption that one who makes a will does not intend to die intestate as to any part of her property. Wing v. Wachovia Bank & Trust Co., 301 N.C. 456, 272 S.E.2d 90 (1980). Ms. Wilson\u2019s will was carefully and, for a lay person, artfully drafted. It is not reasonable to infer that she intended that almost one-half of her considerable estate \u2014 nearly one-half million dollars in value \u2014be left adrift in the unchartered and uncertain seas of intestacy.\nWe hold that Ms. Wilson\u2019s will must be construed to bequeath her certificates of deposit to the University of North Carolina at Greensboro. The judgment below is deemed modified to so provide. In all other respects, the judgment is affirmed.\nAffirmed in part; reversed and modified in part.\nJudge EAGLES dissents.\nJudge Lewis concurs.", "type": "majority", "author": "WELLS, Judge." }, { "text": "Judge EAGLES\ndissenting.\nI respectfully dissent. I would hold that on this record \u201cremaining cash and bonds\u201d does not include certificates of deposit.\nThe majority opinion rests primarily on the presumption against intestacy. Our courts have observed that the presumption against intestacy \u201cis of varying force, according to the circumstances of the particular case, and cannot, of course, justify the Court in making a will for the testator.\u201d Sutton v. Quinerly, 228 N.C. 106, 108, 44 S.E.2d 521, 522 (1947). Here, I believe that the presumption against intestacy must yield to the language of the will. \u201c[The presumption against intestacy], however strong, is but a rule of construction, which must yield to the true intent of the testator when that can be ascertained.\u201d Williard v. Weavil, 222 N.C. 492, 496, 23 S.E.2d 890, 893 (1943). I believe that the intention of the testator can be ascertained from the language in the will. Accordingly, it is not the place of this Court to rewrite the will.\nI agree with the majority that the word \u201ccash\u201d standing alone does not have such a technical definition that it will have the same definite and precise meaning in all circumstances. However, on this record it is possible to ascertain Mildred L. Wilson\u2019s intent in using the phrase \u201cremaining cash and bonds.\u201d\nFirst, I note that the rule is that ordinary words must be given their ordinary meaning when construing wills. Both Black\u2019s Law Dictionary and Webster\u2019s Third New International Dictionary suggest that cash usually means \u201cready money.\u201d In construing a holographic will, \u201csimple conversational words\u201d must be given \u201ctheir natural, ordinary, or popular meaning.\u201d Anders v. Anderson, 246 N.C. 53, 58, 97 S.E.2d 415, 419 (1957). Unlike the majority, I think that most people perceive a difference between a checking account or a savings account on the one hand and a certificate of deposit on the other, in terms of the ready availability of money. I am not persuaded that how certificates of deposit are treated in banking statutes or under accounting principles is relevant in this context. Also, other cases construing the word \u201ccash\u201d are at best a \u201cmeager aid in the ascertainment of the testator\u2019s intent.\u201d Morris v. Morris, 246 N.C. 314, 316, 98 S.E.2d 298, 300 (1957).\nAdditionally, the majority mistakenly focuses its inquiry on the word \u201ccash\u201d alone. The bequest reads: \u201cThe remaining cash and bonds I leave to the University of N.C. at Greensboro, N.C., to be put in a Trust Fund.\u201d Logic suggests that when a writer specifically mentions certain items, by implication she intends to exclude some other items. This principle is expressed in the maxim \u201cexpressio unius est exclusio alterius.\u201d Here, Mildred L. Wilson specifically mentioned her cash and her bonds. She did not enumerate her certificates of deposit. I can only conclude that she would also have listed her certificates of deposit had she intended to include them in the bequest.\nFinally, I question the majority\u2019s conclusion that Mildred L. Wilson\u2019s will was so artfully drafted that she could not have failed to bequeath the certificates of deposit. Here, the testator\u2019s will was artful in that she used very definite and specific language. As the majority notes, Mildred L. Wilson provided for some of her cousins quite generously in her will. I do not find it unreasonable to conclude that these family members are entitled to the portion of her estate not disposed of by her will.\nAccordingly, I respectfully dissent.", "type": "dissent", "author": "Judge EAGLES" } ], "attorneys": [ "Pritchett, Cooke & Burch, by W.L. Cooke, for petitioner ap-pellee Wayland S. Barnes.", "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Charles J. Murray, for the State.", "Baker, Jenkins & Jones, P.A., by Robert C. Jenkins and Robert E. Ruegger, for respondent appellee Lou Wilson Mason." ], "corrections": "", "head_matter": "WAYLAND S. BARNES, Individually and Executor of the Estate of MILDRED L. WILSON, Petitioner v. KEN EVANS, MARIE STERLING, ELLEN NORTHEY O\u2019NEAL, MARGARET POMEROY, VIRGINIA SMITH, PAT DALY, COLERAIN BAPTIST CHURCH, COLERAIN METHODIST CHURCH, BILLY GRAHAM EVANGELICAL ASSOCIATION, J. FRANK WILSON, DOROTHY WILSON, MARGARET STERLING, KAY STERLING ELLIS, RUTH BRISTOW, CAROL BARNES, UNIVERSITY OF NORTH CAROLINA AT GREENSBORO, and Any Unknown and Unnamed Heirs of MILDRED L. WILSON, et als., Respondents\nNo. 906SC37\n(Filed 2 April 1991)\nWills \u00a7 28.6 (NCI3d)\u2014 certificates of deposit as cash \u2014intention of testatrix\nThe phrase \u201cremaining cash and bonds\u201d as used by the testatrix in her will included her certificates of deposit because the greater weight of authority seems to be that the word cash includes certificates of deposit, the testatrix\u2019s intent as gathered from the four corners of the will seemed to indicate such a construction, and there is a presumption that one who makes a will does not intend to die intestate as to any part of her property.\nAm Jur 2d, Wills \u00a7\u00a7 1265, 1266.\nWhat passes under terms \u201ccash,\u201d \u201ccash on hand,\u201d or \u201ccash assets\u201d in will. 27 ALR3d 1406.\nJudge EAGLES dissenting.\nAPPEAL by respondents from judgment entered 4 October 1989 by Judge Gy A. Grant in BERTIE County Superior Court. Heard in the Court of Appeals 28 August 1990.\nMildred L. Wilson died testate in Bertie County on 31 October 1987. The 90-day inventory for her estate showed assets totaling $832,717.92, comprised of the following: (1) $1,424.42 in \u201c \u2018cash,\u2019 coins, uncashed checks and traveler\u2019s checks\u201d; (2) $88,072.58 in bonds; (3) $416,375.79 in certificates of deposit; (4) $33,144.52 in a checking account; (5) $24,453.66 in savings accounts; (6) household furnishings and a car valued at $7,080.00; (7) a farm with a tax value of $221,071.00; (8) residential property with a tax value of $32,696.00; and (9) approximately $8,500.00 in interest and other income received after death.\nThe executor of her estate petitioned for declaratory relief, asking the court to construe the will and to declare whether certificates of deposit should be treated as cash under the will. The will contained the following bequest (referred to by the trial court as a \u201cdevise\u201d):\nItem V\n$5000.00 to Colerain Baptist Church\n$2000.00 to Colerain Methodist Church\n$5000.00 to Billy Graham Evangelical Assn.\n$5000.00 to J. Frank Wilson, Knoxville, Tenn.\n$5000.00 to Dorothy Wilson, Asheville, N.C.\n$2000.00 to Mrs. Margaret Sterling\n$2000.00 to Marie Sterling\n$2000.00 to Kay Sterling Ellis\n$2000.00 to Ellen Northey O\u2019Neal\n$2000.00 to Mrs. Ruth Bristow\n$5000.00 to Mrs. Carol Barnes\nThe remaining Cash and Bonds I leave to the University of N.C. at Greensboro, N.C., to be put in a trust fund.\nThe specific amounts of money devised in this section totaled $37,000.00. The 90-day inventory showed that the estate had $59,022.60 in checking accounts, savings accounts, currency, coins, uncashed checks and traveler\u2019s checks.\nThe trial court found that the last sentence in Item V was not a general residuary clause but rather a specific devise consisting of cash and bonds. The court also found that the certificates of deposit were not cash and that the executor was to treat them as property not specifically devised. The certificates of deposit were available for the payment of debts and other expenses of the estate, and to satisfy the devises stated in the will. Remaining funds would then pass by intestate succession. The University of North Carolina at Greensboro appeals.\nPritchett, Cooke & Burch, by W.L. Cooke, for petitioner ap-pellee Wayland S. Barnes.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Charles J. Murray, for the State.\nBaker, Jenkins & Jones, P.A., by Robert C. Jenkins and Robert E. Ruegger, for respondent appellee Lou Wilson Mason." }, "file_name": "0428-01", "first_page_order": 458, "last_page_order": 464 }