{ "id": 8522237, "name": "NORTH CAROLINA NATIONAL BANK OF GREENSBORO, NORTH CAROLINA, Executor of the Estate of ANNA M. KREIMEIER, Plaintiff-Appellee v. MS. JEAN APPLE and MRS. PATRICIA (APPLE) CREWS, Defendants-Appellees, and THE ESTATE OF LILLIAN P. BRENNAN, Deceased, and WILLIAM R. BRENNAN, Defendants-Appellants", "name_abbreviation": "North Carolina National Bank v. Apple", "decision_date": "1989-09-19", "docket_number": "No. 8818DC1333", "first_page": "606", "last_page": "610", "citations": [ { "type": "official", "cite": "95 N.C. App. 606" } ], "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": "165 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "3 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555645 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/3/0498-01" ] }, { "cite": "178 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559549 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0001-01" ] }, { "cite": "265 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551285 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0449-01" ] }, { "cite": "338 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717444 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0330-01" ] }, { "cite": "88 S.E. 141", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1916, "opinion_index": 0 }, { "cite": "171 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269515 ], "weight": 2, "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/171/0170-01" ] }, { "cite": "321 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571858 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0730-01" ] }, { "cite": "365 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169989 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0429-01" ] } ], "analysis": { "cardinality": 413, "char_count": 9306, "ocr_confidence": 0.748, "pagerank": { "raw": 9.251504869837563e-08, "percentile": 0.5111983362736592 }, "sha256": "d6de70edf854c3bc2d71ff07364d8ff0a3bf7cc53fab23d150b0bed330a0a20a", "simhash": "1:8725e0d07c564e4a", "word_count": 1479 }, "last_updated": "2023-07-14T18:25:49.576177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and PHILLIPS concur." ], "parties": [ "NORTH CAROLINA NATIONAL BANK OF GREENSBORO, NORTH CAROLINA, Executor of the Estate of ANNA M. KREIMEIER, Plaintiff-Appellee v. MS. JEAN APPLE and MRS. PATRICIA (APPLE) CREWS, Defendants-Appellees, and THE ESTATE OF LILLIAN P. BRENNAN, Deceased, and WILLIAM R. BRENNAN, Defendants-Appellants" ], "opinions": [ { "text": "LEWIS, Judge.\nIn construing wills there is a general presumption against intestacy. McKinney v. Mosteller, 85 N.C. App. 429, 365 S.E.2d 612 (1987), rev\u2019d on other grounds, 321 N.C. 730, 365 S.E.2d 612 (1988). A residuary clause in a will should be construed so as to prevent intestacy as to any part of the testator\u2019s estate, unless there is an apparent intent to the contrary. Id. Citing Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916). The court has a duty to render a will operative and to give effect to testator\u2019s intent if reasonable interpretation can be given which is not in contravention of some established rule of law. Stephenson v. Rowe, 315 N.C. 330, 338 S.E.2d 301 (1986).\nGuided by the court\u2019s duty to render the will operative and the presumption against intestacy in whole or in part, we turn to the language of the will to ascertain the testator\u2019s intent. Moore v. Hunter, 46 N.C. App. 449, 265 S.E.2d 884 (1980). The testator writes that \u201cthe part of any deceased daughter or grandchild [is] to go to the survivor in the percentage indicated.\u201d The question before us is whether \u201csurvivor\u201d signifies the predeceased daughter\u2019s surviving issue alone or all those named beneficiaries who survived the testator, including Mrs. Brennan. To interpret the word \u201csurvivor\u201d we look at the clause which follows: \u201cin the percentage indicated.\u201d Had the testator intended for \u201csurvivor\u201d to mean the issue surviving a deceased daughter, the phrase \u201cin the percentage indicated,\u201d would be wholly redundant and superfluous. In that the testator had already written that \u201cthe part of any deceased daughter or grandchild\u201d would go to the survivor, the phrase \u201cin the percentage indicated\u201d has meaning only if that \u201cpercentage\u201d is different from the \u201cpart\u201d of the deceased beneficiary. In other words, had the testator meant \u201csurvivor\u201d to signify the issue of that beneficiary, then she could have left out the final clause and ended the sentence after the word \u201csurvivor.\u201d The sentence then would have read, \u201c. . . the part of any deceased daughter or grandchild [is] to go to the survivor.\u201d\nEvery word and clause in a will must be presumed to have some meaning and if possible be given an effect. Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622 (1971). The final clause, \u201cin the percentage indicated\u201d adds meaning to the sentence only if the \u201cpercentage[s]\u201d referred to are those assigned to the other named beneficiaries, according to which they will divide that part of the estate originally intended for the deceased beneficiary. To read this final clause otherwise is to remove the due effect of those words. Since all heirs named in the will had percentages assigned, all are survivors.\nWe conclude that the testator intended that upon the death of one named beneficiary, each surviving named beneficiary should take her share, \u201cin the percentage indicated.\u201d The trial judge stated that on this or any reading of the will, the percentages will not add up to 100%. Following, once again, the presumption against partial intestacy, we conclude that the will can be read to avoid partial intestacy by multiplying the percentage assigned to each surviving named beneficiary by 100/65, the ratio of the whole estate to that which has been apportioned. This method yields the following results:\nMrs. Lillian Brennan 53.84615%\nJean Apple 15.38462%\nPatricia Apple 15.38462%\nWilliam R. Brennan 15.38462%\nThis method\u2019 accounts for the whole estate by apportioning the predeceased daughter\u2019s share to each surviving named beneficiary according to the \u201cpercentage indicated\u201d in the residuary clause.\nThis will can be given a reasonable construction so to uphold it and avoid partial intestacy. Stephenson v. Rowe, supra. We conclude that the term \u201csurvivor\u201d signifies those named beneficiaries who survived the testator.\nWe have therefore concluded that the language of the will can be upheld to avoid intestacy. We add, however, that were this not the case and had this provision of the will been deemed fatally ambiguous, correct application of the anti-lapse statute would have yielded the same result. While the trial judge apparently applied G.S. 3142(a) in assigning Elizabeth Apple\u2019s share to Elizabeth\u2019s children, G.S. 3142(c)(2) states that where a residuary devise is void or revoked, \u201csuch devise or legacy shall continue as a part of the residue and shall pass to other residuary devisee or legatee.. . .\u201d The provision of the will in question is a \u201cresiduary devise\u201d because it disposes \u201call . . . property . . . not required to carry out the provisions hereinabove,\u201d and therefore accounts for all property which has not otherwise been disposed. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916). Elizabeth Apple\u2019s share would, according to G.S. 3142(c), pass on to all other \u201cnamed beneficiaries.\u201d Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969). In that each beneficiary is a beneficiary according to the percentage assigned to them in the will, each would then take Elizabeth Apple\u2019s share according to the percentage assigned, yielding the identical result we have determined in upholding the will.\nVacated and remanded for judgment in accordance with this opinion.\nJudges BECTON and PHILLIPS concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Booth, Harrington, Johns and Campbell, by A. Frank Johns, for plaintiff-appellee North Carolina National Bank of Greensboro.", "James W. Lung for defendant-appellees Ms. Jean Apple and Mrs. Patricia (Apple) Crews.", "Rivenbark, Kirkman, Alspaugh & Moore, by Douglas E. Moore and John W. Kirkman, Jr., for William R. Brennan." ], "corrections": "", "head_matter": "NORTH CAROLINA NATIONAL BANK OF GREENSBORO, NORTH CAROLINA, Executor of the Estate of ANNA M. KREIMEIER, Plaintiff-Appellee v. MS. JEAN APPLE and MRS. PATRICIA (APPLE) CREWS, Defendants-Appellees, and THE ESTATE OF LILLIAN P. BRENNAN, Deceased, and WILLIAM R. BRENNAN, Defendants-Appellants\nNo. 8818DC1333\n(Filed 19 September 1989)\n1. Wills \u00a728.6\u2014 ambiguous language \u2014 survivor\u2014construction of\nLanguage in a will leaving all of the testator\u2019s property to her two adopted daughters and three grandchildren in stated percentages, \u201cwith the part of any deceased daughter or grandchild to go to the survivor in the percentage indicated,\u201d was construed to mean that, upon the death of one named beneficiary, each surviving beneficiary would take her share in the percentage indicated. Since the percentages will not add up to 100% on this or any reading of the will, partial intestacy is avoided by multiplying the percentage assigned to each surviving named beneficiary by the ratio of the whole estate to that which has been apportioned.\n2. Wills \u00a7 66.1\u2014 anti-lapse clause \u2014 residuary clause \u2014 deceased beneficiary\nA provision in a will which disposed of \u201call . . . property . . . not required to carry out the provisions hereinabove\u201d was a residuary clause and, under the anti-lapse statute, N.C.G.S. 31-42(c), the share of the testator\u2019s deceased daughter would pass to all other named beneficiaries. Since each beneficiary is a beneficiary according to the percentage assigned to them in the will, each would take the deceased daughter\u2019s share according to the percentage assigned, yielding the identical result determined by the court in upholding the will.\nAPPEAL by defendants, the Estate of Lillian P. Brennan and William R. Brennan, from Daisy (William LJ, Judge. Judgment entered 3 October 1988 in District Court, GUILFORD County. Heard in the Court of Appeals 7 June 1989.\nAnna M. Kreimeier died testate on 10 November 1987. She named plaintiff as executor of the will. Her will contained the following provision:\nAll of my property, both real and personal, not required to carry out the provisions hereinabove, I will, devise and bequeath to my two adopted daughters and three grandchildren in the following percentages, the part of any deceased daughter or grandchild to go to the survivor in the percentage indicated.\nNames\nPercentages\nMrs. Lillian Brennan 35\u00b0/o\nMrs. Elizabeth P. Apple 35%\nJean Apple 10%\nPatricia Apple 10%\nWilliam R. Brennan 10%\nLillian Brennan and Elizabeth Apple were the testator\u2019s adopted daughters. Jean Apple, Patricia Apple and William Brennan are the testator\u2019s grandchildren. Elizabeth Apple predeceased the testator and was survived by her children Patricia and Jean Apple.\nOn 18 December 1987 plaintiff filed a complaint seeking declaratory judgment on the interpretation of the above-cited provision. Specifically, plaintiff asked the court to determine who the testator meant to be a \u201csurvivor\u201d and whether she meant the surviving issue of a named beneficiary, or a surviving named beneficiary.\nLillian Brennan died after the filing of plaintiff\u2019s complaint and the court granted a motion to substitute her husband/estate administrator as a party in this action.\nAfter a hearing, the court concluded that the term \u201csurvivor\u201d was ambiguous and that it was unable to determine the testator\u2019s intent. Therefore, the court applied the anti-lapse statute, G.S. 31-42(a), and ordered that Elizabeth Apple\u2019s 35% share should go to her surviving daughters Jean and Patricia Apple.\nDefendants, the Estate of Lillian Brennan, William Brennan executor, appeal, alleging that the intent of the word \u201csurvivor\u201d clearly represents all surviving named beneficiaries, and that the court should not have applied the anti-lapse statute.\nBooth, Harrington, Johns and Campbell, by A. Frank Johns, for plaintiff-appellee North Carolina National Bank of Greensboro.\nJames W. Lung for defendant-appellees Ms. Jean Apple and Mrs. Patricia (Apple) Crews.\nRivenbark, Kirkman, Alspaugh & Moore, by Douglas E. Moore and John W. Kirkman, Jr., for William R. Brennan." }, "file_name": "0606-01", "first_page_order": 634, "last_page_order": 638 }