{ "id": 8353481, "name": "WALKER F. CROCKER CAUDLE GIBBONEY, Plaintiff v. WACHOVIA BANK, N.A., In Its Capacity as Executor of the Estate of Larry W. Caudle, Deceased, VELLER CAUDLE BOONE, RUTH CAUDLE BAITY, RAYMOND C. CAUDLE, ROBERT C. CAUDLE, EDGAR H. CAUDLE, MELISSA B. HARRELSON, L. CLAY WOOTEN, BARBARA WOOTEN McDONALD, PAULINE WOOTEN CHEEK, BERNICE WOOTEN JONES, LOIS WOOTEN BECK, FLORINE WOOTEN GUEVARRA, CHARLES HERMAN WOOTEN, BETTY WOOTEN HOLDER, BOBBY LEE WOOTEN, NANCY WOOTEN RIST, JERRIE WOOTEN LEWIS and KAREN WOOTEN HAZEN, Defendants", "name_abbreviation": "Gibboney v. Wachovia Bank, N.A.", "decision_date": "2005-12-06", "docket_number": "No. COA04-1636", "first_page": "834", "last_page": "838", "citations": [ { "type": "official", "cite": "174 N.C. App. 834" } ], "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": "325 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759469 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0692-01" ] }, { "cite": "232 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "291 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558677 ], "year": 1977, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0451-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "117 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "253 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626129 ], "year": 1960, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0515-01" ] }, { "cite": "338 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "304" }, { "page": "304" } ], "opinion_index": 0 }, { "cite": "315 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717444 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "335" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0330-01" ] }, { "cite": "575 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189571 ], "year": 2003, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0029-01" ] }, { "cite": "343 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525185 ], "year": 1986, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0561-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 31-5.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "opinion_index": 0 } ], "analysis": { "cardinality": 569, "char_count": 9384, "ocr_confidence": 0.755, "pagerank": { "raw": 2.0993038655706752e-07, "percentile": 0.7615494185182224 }, "sha256": "5fa3b8d16947d7bb186031715bc273d01f3d0e957f15cee71cb0181651255fa4", "simhash": "1:a36efc72427d794d", "word_count": 1494 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "WALKER F. CROCKER CAUDLE GIBBONEY, Plaintiff v. WACHOVIA BANK, N.A., In Its Capacity as Executor of the Estate of Larry W. Caudle, Deceased, VELLER CAUDLE BOONE, RUTH CAUDLE BAITY, RAYMOND C. CAUDLE, ROBERT C. CAUDLE, EDGAR H. CAUDLE, MELISSA B. HARRELSON, L. CLAY WOOTEN, BARBARA WOOTEN McDONALD, PAULINE WOOTEN CHEEK, BERNICE WOOTEN JONES, LOIS WOOTEN BECK, FLORINE WOOTEN GUEVARRA, CHARLES HERMAN WOOTEN, BETTY WOOTEN HOLDER, BOBBY LEE WOOTEN, NANCY WOOTEN RIST, JERRIE WOOTEN LEWIS and KAREN WOOTEN HAZEN, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nThe surviving next of kin (\u201cdefendants\u201d) of Larry W. Caudle (\u201cdecedent\u201d) appeal a summary judgment order declaring Walker F. Crocker Caudle Gibboney (\u201cplaintiff\u2019) the sole beneficiary under the terms of decedent\u2019s will. We reverse.\nFrom 1962 until 1975, plaintiff and decedent (collectively \u201cthe parties\u201d) either dated or remained \u201cgood friends,\u201d until decedent proposed to plaintiff in June 1975. During the time the parties were \u201csimply in a dating relationship,\u201d decedent executed a will dated 25 May 1973. Article II of the will set forth four (4) mutually exclusive tiers of contingent dispositions in descending order of priority, paraphrased as follows:\n1st: to a surviving wife, lawfully married to decedent on his death date, \u201cabsolutely and in fee simple forever\u201d; or\n2nd: if no surviving wife, to decedent\u2019s surviving children in equal shares fee simple absolute, or per stirpes to the issue of decedent\u2019s deceased children; or\n3rd: if no surviving wife, children, or issue of deceased children, to decedent\u2019s parents, Edward W. Caudle and Treva W. Caudle, in equal shares, or to the survivor, in fee simple absolute; or\n4th: if none of the above persons survive decedent, to \u201cMiss Walker F. Crocker, of Greensboro, North Carolina, if she shall survive decedent in fee simple absolute.\u201d\nThe will failed to include a specific residuary clause.\nThe parties were married on 20 September 1975, separated on 19 September 1995, and later divorced on 24 February 1997. They executed a property settlement agreement in which they agreed first, to divide their marital assets and second, not to \u201cmake any claim for any interest or estate whatsoever in or to any property, real, personal, or mixed, which the other now owns or hereafter acquires.\u201d Decedent died on 11 October 2003 predeceased by his parents. He never changed his will, never remarried, and never had children.\nThe executor indicated decedent\u2019s estate would pass intestate by operation of law. The application for probate and letters testamentary included an addendum listing decedent\u2019s surviving paternal and maternal next of kin (\u201cnext of kin\u201d). Plaintiff filed a complaint on 23 April 2004, seeking entry of a declaratory judgment regarding the construction and interpretation of decedent\u2019s will, specifically that she was the sole surviving beneficiary. In a motion for summary judgment, plaintiff asserted there was \u201cno genuine issue as to any material fact affecting [her] entitlement to a declaratory judgment declaring [her] to be the sole residual beneficiary\u201d under decedent\u2019s will. On 17 September 2004, the trial court granted summary judgment, declaring plaintiff the sole residual beneficiary. All defendants except Wachovia Bank appeal.\nDefendants argue the court erred in granting plaintiff\u2019s motion for summary judgment by failing to conclude that the provisions of the will in favor of plaintiff were revoked by N.C. Gen. Stat. \u00a7 31-5.4. We agree.\nA party is entitled to summary judgment \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). When a trial court rules on a motion for summary judgment, \u201cthe evidence is viewed in the light most favorable to the non-moving party,\u201d Hinson v. Hinson, 80 N.C. App. 561, 563, 343 S.E.2d 266, 268 (1986), and all inferences of fact must be drawn against the movant and in favor of the nonmovant. Floyd v. McGill, 156 N.C. App. 29, 35, 575 S.E.2d 789, 793 (2003).\nIf possible, the court\u2019s duty is to render a will operative rather than invalid. Stephenson v. Rowe, 315 N.C. 330, 335, 338 S.E.2d 301, 304 (1986). The testator\u2019s intent is \u201cthe polar star which is to guide [the courts] in the interpretation of all wills[.]\u201d Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960). In construing a will, we also consider established rules of law and public policy. Stephenson, 315 N.C. at 335, 338 S.E.2d at 304 (1986). North Carolina General Statutes \u00a7 31-5.4 (2003) expressly provides:\n[dissolution of marriage by absolute divorce or annulment after making a will does not revoke the will of any testator but, unless otherwise specifically provided in the will, it revokes all provisions in the will in favor of the testator\u2019s former spouse or purported former spouse, including, but not by way of limitation, any provision conferring a general or special power of appointment on the former spouse or purported former spouse and any appointment of the former spouse or purported former spouse as executor, trustee, conservator, or guardian. If provisions are revoked solely by this section, they are revived by the testator\u2019s remarriage to the former spouse or purported former spouse.\n(Emphasis added.)\nIn accordance with this statute, we consider whether decedent \u201cotherwise specifically provided\u201d for plaintiff to take under his will in a manner rendering the automatic revocation provision of N.C. Gen. Stat. \u00a7 31-5.4 inoperative upon the parties\u2019 divorce. Plaintiff argues the first and fourth dispositional tiers satisfy the exception provisions. Specifically, plaintiff asserts the will\u2019s terms create the following alternative disposition of decedent\u2019s estate: the first tier pro\u2022vides for plaintiff only if she was legally married to decedent upon his death and the fourth tier operates as a final, residual disposition specifically to plaintiff in the event there were no beneficiaries available to take under the prior three tiers, including plaintiff as a lawfully wedded spouse under the first tier. We hold that plaintiff\u2019s argument is unavailing.\n\u201cWhere the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.\u201d Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). Thus, the statute \u201cmust be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction.\u201d Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977). The language of N.C. Gen. Stat. \u00a7 31-5.4 (2003) that \u201cunless otherwise specifically provided [dissolution of marriage by divorce] revokes all provisions in the will in favor of the testator\u2019s former spouse,\u201d clearly mandates that unless the testator expressly indicates in his will that even if he divorces his spouse she would remain a beneficiary, the former spouse is denied any testate disposition. In this case, the decedent failed to so provide. Neither of the provisions of the will cited by plaintiff expressly provides, as required by statute, that if decedent divorces plaintiff, plaintiff would take any testamentary disposition. Absent such a statement in decedent\u2019s will, plaintiff has not satisfied the requirements of N.C. Gen. Stat. \u00a7 31-5.4.\nWhile we agree with plaintiff that this State has a long-standing policy to construe a will so as to avoid the intestate distribution of any part of a testator\u2019s property, see Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195 (1985), we cannot affirm a construction of a will that conflicts with the clear legislative mandate of N.C. Gen. Stat. \u00a7 31-5.4. Because we hold decedent\u2019s will failed to specifically provide for plaintiff in a manner rendering the automatic revocation provisions of N.C. Gen. Stat. \u00a7 31-5.4 inoperative, we do not reach the issue of what impact the parties\u2019 property settlement agreement otherwise had on plaintiffs ability to take under this will.\nWe reverse the trial court\u2019s summary judgment finding plaintiff the sole beneficiary under the decedent\u2019s will and remand for entry of summary judgment in favor of defendants.\nReversed and remanded.\nJudges ELMORE and GEER concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Gabriel, Berry, & Weston, L.L.P., by M. Douglas Berry for plaintiff-appellee.", "Browne, Flebotte, Wilson, Horn & Webb, by Daniel R. Flebotte, for defendants-appellants." ], "corrections": "", "head_matter": "WALKER F. CROCKER CAUDLE GIBBONEY, Plaintiff v. WACHOVIA BANK, N.A., In Its Capacity as Executor of the Estate of Larry W. Caudle, Deceased, VELLER CAUDLE BOONE, RUTH CAUDLE BAITY, RAYMOND C. CAUDLE, ROBERT C. CAUDLE, EDGAR H. CAUDLE, MELISSA B. HARRELSON, L. CLAY WOOTEN, BARBARA WOOTEN McDONALD, PAULINE WOOTEN CHEEK, BERNICE WOOTEN JONES, LOIS WOOTEN BECK, FLORINE WOOTEN GUEVARRA, CHARLES HERMAN WOOTEN, BETTY WOOTEN HOLDER, BOBBY LEE WOOTEN, NANCY WOOTEN RIST, JERRIE WOOTEN LEWIS and KAREN WOOTEN HAZEN, Defendants\nNo. COA04-1636\n(Filed 6 December 2005)\nWills\u2014 divorced spouse \u2014 unchanged will\nThe language of N.C.G.S. \u00a7 31-5.4 clearly mandates that a former spouse is denied any testate disposition unless the testator clearly indicates in the will that he or she would remain a beneficiary even if they divorced. Neither of the provisions of the will cited by the plaintiff in this case so provides, and summary judgment should not have been granted for plaintiff. Although North Carolina has a long-standing policy of avoiding intestate succession, a will cannot be construed to conflict with a clear legislative mandate.\nAppeal by defendants from judgment entered 17 September 2004 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 15 June 2005.\nGabriel, Berry, & Weston, L.L.P., by M. Douglas Berry for plaintiff-appellee.\nBrowne, Flebotte, Wilson, Horn & Webb, by Daniel R. Flebotte, for defendants-appellants." }, "file_name": "0834-01", "first_page_order": 864, "last_page_order": 868 }