{ "id": 8550408, "name": "IN RE: THE LAST WILL AND TESTAMENT OF EMILY WARD GRADY", "name_abbreviation": "In re Grady", "decision_date": "1977-06-15", "docket_number": "No. 767SC897", "first_page": "477", "last_page": "482", "citations": [ { "type": "official", "cite": "33 N.C. App. 477" } ], "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": "98 S.E. 715", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "177 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654165 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/177/0243-01" ] }, { "cite": "73 S.E. 2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "236 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627533 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/236/0709-01" ] }, { "cite": "62 S.E. 1071", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1908, "opinion_index": 0 }, { "cite": "149 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270158 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/nc/149/0235-01" ] }, { "cite": "108 S.E. 769", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "182 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655644 ], "year": 1921, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/182/0192-01" ] }, { "cite": "117 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626129 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0515-01" ] }, { "cite": "133 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575296 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0482-01" ] }, { "cite": "56 S.E. 2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "231 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629193 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/231/0218-01" ] } ], "analysis": { "cardinality": 497, "char_count": 11648, "ocr_confidence": 0.683, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.43885222651977007 }, "sha256": "d2e8c381b23e2ccf854bdcbc420ac5395d588cbe013669f38585ddaccd16acda", "simhash": "1:ea84c757044c3056", "word_count": 2002 }, "last_updated": "2023-07-14T18:09:28.190456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin concur." ], "parties": [ "IN RE: THE LAST WILL AND TESTAMENT OF EMILY WARD GRADY" ], "opinions": [ { "text": "BROCK, Chief Judge.\nExcept for the last sentence thereof, the wording of the devise clearly gives applicant a life estate in the West End Avenue property. The questions before this Court are whether that interest is enlarged by the language of the last sentence passing the property to applicant\u2019s \u201cestate\u201d in fee simple at her death. And if it is enlarged, is it so enlarged as to enable applicant to convey a fee simple title?\nAs a general rule in construing wills, courts will try to determine and conform to the testatrix\u2019s intentions. The intent will be gleaned from the four corners of the will and will be given effect unless that intent is contrary to some rule of law or at variance with public policy. House v. House, 231 N.C. 218, 56 S.E. 2d 695 (1949). The provision in question states: \u201cAt her [applicant\u2019s] death it is to go to her [applicant\u2019s] estate in fee simple.\u201d From this disposition one intention is clear. The testatrix intended to and did in fact permanently pass the house and lot out of testatrix\u2019s estate. The provision establishes that no reversionary interest back to testatrix\u2019s estate at the applicant\u2019s death was intended.\nThe question remaining is what interest, if any, was given to the applicant by the devise of the property to applicant\u2019s \u201cestate in fee simple\u201d at the termination of her life estate. To answer the question, the meaning of the word \u201cestate\u201d as used in the devise must be determined. Each word used by a testator presumably has some meaning. In Re Wilson\u2019s Will, 260 N.C. 482, 133 S.E. 2d 189 (1963). In interpreting particular words, technical words are presumed to have been used in their technical sense. However, where there is evidence of a contrary intent in the will, even technical words will be construed to mean what the testator intended them to mean despite the fact that identical words have received a contrary construction in other cases. Clark v. Connor, 253 N.C. 515, 117 S.E. 2d 465 (1960).\nThe word \u201cestate\u201d has more than one meaning and is susceptible to more than one construction. \u201cIts legal signification must be ascertained from the context, or an examination of all the provisions of the instrument in which it appears.\u201d Reid v. Neal, 182 N.C. 192, 199, 108 S.E. 769, 772 (1921). In the present case the use of the word \u201cestate\u201d is in a context which indicates that the testatrix intended that, after applicant\u2019s life estate, the house and lot were to devolve as any other property applicant might have at her death. In other words, \u201cestate\u201d means that aggregate of property which applicant might leave at her death, Reid v. Neal, supra, or the property belonging to the applicant which would be administered by the courts upon her decease. 28 Am. Jur. 2d, Estates, \u00a7 1, p. 70.\nInterpreting the provision in this manner, one of two alternative dispositions of the property at applicant\u2019s death may have been intended. First, applicant has only a life estate while she lives. But since the property is to be considered hers at her death, the testatrix has, by implication, given the applicant (testatrix\u2019s only child) an unrestricted power to dispose of the property by will. A power may be created by express words or by implication of law, and no technical language need be used. Powell v. Woodcock, 149 N.C. 235, 62 S.E. 1071 (1908). In the event applicant failed to dispose of the property by will, it would pass to applicant\u2019s heirs by descent under the laws of intestate succession. Secondly, by passing the house and lot to applicant\u2019s estate, the testatrix may not have intended to let applicant dispose of the property as she wished by will. Testatrix may have intended disposition of the property to remain in the family by descent to applicant\u2019s heirs under the laws of intestate succession. We need not, nor do we, decide whether the devise to applicant\u2019s estate granted a testamentary power of appointment or a limitation to applicant\u2019s heirs. Under either circumstance the outcome of this case is the same.\nConstruing the provision in the will as granting to the applicant a power to appoint by will, the next level of examination concerns the consequences of applicant\u2019s attempt to convey the property by deed. A devisee of a life interest with a testamentary power of disposition not coupled with any trust or beneficial interest to others may release or extinguish the right to exercise the power, and the execution and delivery to another of a warranty deed by the devisee constitutes an estoppel and precludes him from exercising such power. Voncannon v. Hudson Belk Co., 236 N.C. 709, 73 S.E. 2d 875 (1953). Thus the applicant in this case can release her testamentary power or be estopped from exercising it by an inter vivos conveyance of the property to another.\nA comparison of Voncannon v. Hudson Belk Co., supra, with the present case is instructive. In Voncannon the testator devised his wife realty \u201cfor the remainder of her natural life and then at her death to be disposed of according to her wishes.\u201d The Supreme Court construed the devise to be a life estate with a power of disposition in the wife. There was no gift over in case the devisee failed to exercise the power. Thus, upon failure to exercise the power, the property reverted to the testator\u2019s estate, there to pass to his heirs by intestate succession. The wife sold the property. The testator\u2019s heirs joined with her in the deed. The Court held that the deed passed good fee simple title in that the wife transferred her life interest, the heirs transferred the remainder in fee, and by executing the deed, the wife released her power to dispose of the property by will.\nThe present case would be governed by Voncannon if there were a reversionary interest to the testatrix\u2019s estate, and under Voncannon applicant could pass clear title. This is so because applicant is the heir of the testatrix who would take by intestacy. Thus, by releasing her testamentary power by deed, the remainder in fee would vest in her, and her life estate would merge therein. However, the testatrix\u2019s devise to applicant in this case is such that there is no reversionary interest. If the property is not disposed by applicant\u2019s will, it passes to her heirs under the laws governing intestacy.\nAt this point it is relevant to consider the Rule in Shelley\u2019s Case. The rule applies to an instrument which conveys a life estate to a person with a remainder to his heirs. The word \u201cheirs\u201d means those persons who would take the property on the death of their ancestor intestate. Any remainder found to have this meaning, whether the word \u201cheirs\u201d is used or not, calls for an application of the rule. Nobles v. Nobles, 177 N.C. 243, 98 S.E. 715 (1919). Absent an exercise of a testamentary power in the present case, the provision \u201cto her estate in fee simple\u201d would leave a remainder to applicant\u2019s heirs \u2014 those who would take her property by descent on the death of the applicant intestate. By executing a deed, the applicant would release her testamentary power so as to estop her from ever exercising it. Such a deed from her would convey fee simple title because, with the testamentary power released, the Rule in Shelley\u2019s Case operates to convert her life estate and the remainder in her heirs to a fee simple estate in her. In Re Wilson\u2019s Will, supra.\nConstruing the provision \u201cto her estate\u201d as excluding a power to appoint by will, the devise still places the house and lot in the aggregate of applicant\u2019s property that would be administered by the courts. Under this construction the testatrix has created a remainder in applicant\u2019s heirs because any property of a decedent that does not pass by will descends under the laws of intestate succession. For the same reasons as stated above, the Rule in Shelley\u2019s Case would apply under this construction to convert applicant\u2019s life estate and the remainder to her heirs into a fee simple estate in the applicant, enabling applicant presently to convey fee simple title.\nUnder this particular set of facts and circumstances and under either construction of \u201cto her estate,\u201d applicant has the present ability to convey the house and lot in fee simple.\nThe judgment is reversed, and the ease is remanded for further appropriate proceedings.\nReversed and remanded.\nJudges Hedrick and Martin concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "H. Bruce Hulse and Duke & Brown, by J. Thomas Brown, Jr., for the applicant." ], "corrections": "", "head_matter": "IN RE: THE LAST WILL AND TESTAMENT OF EMILY WARD GRADY\nNo. 767SC897\n(Filed 15 June 1977)\n1. Wills \u00a7 28\u2014 construction \u2014 intent of testator\nAs a general rule in construing wills courts will try to determine and conform to the testatrix\u2019s intentions, and the intent will be gleaned from the four corners of the will and will be given effect unless that intent is contrary to some rule of law or at variance with public policy.\n2. Wills \u00a7 28\u2014 interpreting particular words \u2014 rules of construction\nIn interpreting particular words in wills, technical words are presumed to have been used in their technical sense; however, where there is evidence of a contrary intent in the will, even technical words will be construed to mean what the testator intended them to mean despite the fact that identical words have received a contrary construction in other cases.\n3. Wills \u00a7 28\u2014 devise to applicant\u2019s estate \u2014 meaning of \u201cestate\u201d\nWhere deceased\u2019s will provided that certain property should go to applicant \u201clor her lifetime only\u201d and that \u201cat her death it is to go to her estate in Fee Simple,\u201d \u201cestate\u201d meant that aggregate of property which applicant might leave at her death, or the property belonging to the applicant which would be administered by the courts upon her decease.\n4. Wills \u00a7 33\u2014 property to go to devisee for life and then to estate in fee simple \u2014 Rule in Shelley\u2019s Case \u2014 fee simple to devisee .\nWhere the will of testatrix devised a house and lot to the applicant for her lifetime only and provided further that \u201cat her death it is to go to her estate in Fee Simple,\u201d it is unnecessary to determine whether the devise to applicant\u2019s estate granted a testamentary power of appointment or a limitation to applicant\u2019s heirs, since, in either case, the Rule in Shelley\u2019s Case would apply to convert applicant\u2019s, life estate and the remainder to her heirs into a fee simple estate in the applicant, enabling applicant presently to convey fee simple title.\nAppeal by applicant from Tillery, Judge. Judgment entered 2 September 1976 in Superior Court, Wilson County. Heard in the Court of Appeals 11 May 1977.\nOn or about 7 December 1973 Emily Ward Grady died testate in Wilson County. In her will, which was admitted to probate on 13 December 1973, the deceased devised to Cynthia Ward Grady, her only child and applicant herein, certain real property. The particular devise read as follows: \u201cMy house and lot on West End Ave., Wilson, N. C., I would like to give to Cindy for her lifetime only. This is to provide a place she can call home. I ask that she keep up the property\u2019s appearance in keeping with the community. At her death it is to go to her estate in Fee Simple.\u201d\nAt sometime during 1975 applicant decided to sell the West End Avenue property. Donald Barnes, the prospective purchaser, refused to consummate the transaction on the grounds that Cynthia could not transfer fee simple title to the property.\nPursuant to G.S. 1-253 the applicant instituted proceedings to clear her title by applying for a declaration of her rights under the deceased\u2019s last will and testament. The cause was heard in superior court before Judge Tillery, who adjudged that the deceased\u2019s will passed only a life estate to the applicant and did not pass fee simple title.\nH. Bruce Hulse and Duke & Brown, by J. Thomas Brown, Jr., for the applicant." }, "file_name": "0477-01", "first_page_order": 505, "last_page_order": 510 }