{ "id": 8520342, "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", "name_abbreviation": "Betts v. Parrish", "decision_date": "1983-05-03", "docket_number": "No. 8210SC525", "first_page": "77", "last_page": "80", "citations": [ { "type": "official", "cite": "62 N.C. App. 77" } ], "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": "9 S.E. 2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "424" } ], "opinion_index": 1 }, { "cite": "217 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616864 ], "year": 1940, "pin_cites": [ { "page": "720-21" } ], "opinion_index": 1, "case_paths": [ "/nc/217/0714-01" ] }, { "cite": "35 S.E. 2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "232" } ], "opinion_index": 1 }, { "cite": "225 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608381 ], "year": 1945, "pin_cites": [ { "page": "377" } ], "opinion_index": 1, "case_paths": [ "/nc/225/0375-01" ] }, { "cite": "200 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "776" } ], "opinion_index": 1 }, { "cite": "284 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561694 ], "year": 1973, "pin_cites": [ { "page": "295" } ], "opinion_index": 1, "case_paths": [ "/nc/284/0284-01" ] }, { "cite": "187 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "7" } ], "opinion_index": 1 }, { "cite": "280 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573439 ], "year": 1972, "pin_cites": [ { "page": "707" } ], "opinion_index": 1, "case_paths": [ "/nc/280/0705-01" ] } ], "analysis": { "cardinality": 353, "char_count": 6197, "ocr_confidence": 0.821, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3399937602539762 }, "sha256": "fe1ec6484915d3909d10f4625d83e8d4335acd5a46c1ea1e0720fee4114e08d7", "simhash": "1:a311975717782c77", "word_count": 1059 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Braswell concurs.", "Judge Whichard dissents." ], "parties": [ "WENDY BETTS, ANGIE BETTS, by and through their Guardian ad Litem, SANDRA BETTS PARKER and KENNETH WAYNE O\u2019NEIL v. MARGARET PARRISH, Administratrix CTA of the Estate of Russell W. Sanderford, RUBY WILSON ELLIS, and MILDRED S. POLLARD" ], "opinions": [ { "text": "WEBB, Judge.\nWe 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.\nThe 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.\nThe testator and his wife died without issue. The remainder interest in the testator\u2019s 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.\nReversed and remanded.\nJudge Braswell concurs.\nJudge Whichard dissents.", "type": "majority", "author": "WEBB, Judge." }, { "text": "Judge Whichard\ndissenting.\n\u201c[T]he dominant purpose in construing a will is to ascertain and give effect to the testator\u2019s intent.\u201d 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 known to the testator. Wilson v. Church, 284 N.C. 284, 295, 200 S.E. 2d 769, 776 (1973). It is presumed that one who makes a will does not intend to die intestate as to any of his property. Ferguson v. Ferguson, 225 N.C. 375, 377, 35 S.E. 2d 231, 232 (1945). \u201cHaving undertaken to make a will at all, it is not consistent with sound reasoning that the testator would have left his estate dangling.\u201d Coddington v. Stone, 217 N.C. 714, 720-21, 9 S.E. 2d 420, 424 (1940). When a will permits two interpretations, then, one resulting in complete testacy and the other only partial, the presumption favors complete testacy.\nI 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.\nThe testator provided for disposition of both real and personal property. Item Four stated that he devised and bequeathed \u201call of [his] property.\u201d It is thus evident that he intended to dispose of his entire estate, not that some of it should pass by intestacy.\nIt is apparent that the draftsman failed to take account of the possibility that the testator\u2019s 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.\nI vote to affirm.", "type": "dissent", "author": "Judge Whichard" } ], "attorneys": [ "Moore, Ragsdale, Liggett, Ray and Foley, by John N. Hutson, Jr., for plaintiff appellees.", "Kimzey, Smith and McMillan, by Duncan A. McMillan, for defendant appellants." ], "corrections": "", "head_matter": "WENDY BETTS, ANGIE BETTS, by and through their Guardian ad Litem, SANDRA BETTS PARKER and KENNETH WAYNE O\u2019NEIL v. MARGARET PARRISH, Administratrix CTA of the Estate of Russell W. Sanderford, RUBY WILSON ELLIS, and MILDRED S. POLLARD\nNo. 8210SC525\n(Filed 3 May 1983)\nWills 8 66\u2014 will construction \u2014contingency not happening\nWhere testator\u2019s will devised his real property to his mother for her lifetime and after her death to his wife in fee simple, the will provided that should his mother predecease testator, his real property should go to his wife in fee simple, the will further provided that should his mother and wife both predecease testator, his property should go to two nieces and a nephew, testator\u2019s wife predeceased him, and testator and his wife died without issue, the remainder interest in testator\u2019s real property did not pass to testator\u2019s nieces and nephew under the will but passed to testator\u2019s mother by intestate succession. G.S. 31-42(c)(l)b; G.S. 29-15(3).\nJudge Whichard dissenting.\nAppeal by defendants from Godwin, Judge. Judgment entered 24 March 1982 in Superior Court, Wake County. Heard in the Court of Appeals 12 April 1983.\nThis is an action for a declaratory judgment construing the will of Russell W. Sanderford. Mr. Sanderford\u2019s will provided in part as follows:\nItem Two\nI will and bequeath all of my personal property in equal shares to my wife, Mamie Prince Sanderford, and my mother, Ruby Wilson Ellis; provided that if either should predecease me then the survivor shall receive all of said personal property.\nItem Three\nI will and devise my house at 134 Maywood Avenue, Raleigh, N.C., and all other real estate that I own to my mother for her lifetime and after her death to my wife, Mamie Prince Sanderford, in fee simple. Should my mother predecease me, then I will and devise said real estate to my wife, Mamie Prince Sanderford, in fee simple.\nItem Four\nIf my mother and my wife should both predecease me, then I will, devise and bequeath all of my property, real, personal and mixed in equal shares to my nieces and nephew as follows:\nOne-third interest to Wendy Betts\nOne-third interest to Angie Betts\nOne-third interest to Kenneth Wayne O\u2019Neil\nThe testator\u2019s wife predeceased him. He was survived by his mother, defendant Ruby Wilson Ellis, and by his nieces and nephew named in Item Four of his will.\nThe superior court concluded that the remainder interest in the house and lot at 134 Maywood Avenue lapsed upon the death of the testator\u2019s wife, and was devised by Item Four of the will to plaintiffs as tenants in common. It entered judgment declaring that the will devised a life estate to testator\u2019s mother and the remainder in fee to plaintiffs.\nDefendants appealed.\nMoore, Ragsdale, Liggett, Ray and Foley, by John N. Hutson, Jr., for plaintiff appellees.\nKimzey, Smith and McMillan, by Duncan A. McMillan, for defendant appellants." }, "file_name": "0077-01", "first_page_order": 109, "last_page_order": 112 }