{ "id": 2546855, "name": "BEATRICE H. HOLLOWELL v. JAMES RODNEY HOLLOWELL and wife, KAY MUNROE HOLLOWELL; TERESA H. WILLIAMS and husband, DAVID WILLIAMS; CATHY HOLLOWELL PEARCE and husband, LESTER PEARCE; DEBRA JOAN HOLLOWELL (Unmarried), and LOUISIANA-PACIFIC CORPORATION", "name_abbreviation": "Hollowell v. Hollowell", "decision_date": "1993-06-04", "docket_number": "No. 333PA92", "first_page": "706", "last_page": "718", "citations": [ { "type": "official", "cite": "333 N.C. 706" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "420 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": -1 }, { "cite": "107 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527287 ], "year": 1992, "opinion_index": -1, "case_paths": [ "/nc-app/107/0166-01" ] }, { "cite": "25 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1943, "pin_cites": [ { "page": "180" }, { "page": "181" }, { "page": "180-81" } ], "opinion_index": 0 }, { "cite": "223 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596904 ], "year": 1943, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0001-01" ] }, { "cite": "200 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561694 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0284-01" ] }, { "cite": "290 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "611", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572855 ], "year": 1982, "pin_cites": [ { "page": "629", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0625-01" ] }, { "cite": "47 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1948, "pin_cites": [ { "page": "25" }, { "page": "26" }, { "page": "25", "parenthetical": "emphasis added" }, { "page": "26" } ], "opinion_index": 0 }, { "cite": "228 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628250 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/228/0732-01" ] }, { "cite": "42 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1942, "opinion_index": 0 }, { "cite": "315 Ill. App. 78", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5644968 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ill-app/315/0078-01" ] }, { "cite": "385 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "57 Ohio Misc. 6", "category": "reporters:state", "reporter": "Ohio Misc.", "case_ids": [ 1444840 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ohio-misc/57/0006-01" ] }, { "cite": "388 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304594 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0361-01" ] }, { "cite": "381 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "94 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527706 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0657-01" ] }, { "cite": "54 N.C. (1 Jones Eq.) 159", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1854, "opinion_index": 0 }, { "cite": "130 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559240 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0081-01" ] }, { "cite": "178 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559549 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0001-01" ] }, { "cite": "100 S.E. 427", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "178 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271994 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/178/0257-01" ] }, { "cite": "20 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "221 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628017 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/221/0422-01" ] }, { "cite": "59 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "232 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594789 ], "year": 1950, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0013-01" ] }, { "cite": "23 S.E. 37", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1895, "pin_cites": [ { "page": "38" } ], "opinion_index": 0 }, { "cite": "117 N.C. 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652331 ], "year": 1895, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/117/0008-01" ] }, { "cite": "183 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568277, 8568374, 8568311, 8568344, 8568410 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0394-01", "/nc/279/0394-04", "/nc/279/0394-02", "/nc/279/0394-03", "/nc/279/0394-05" ] }, { "cite": "181 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556092 ], "year": 1971, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0564-01" ] }, { "cite": "91 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "250" } ], "opinion_index": 0 }, { "cite": "243 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625764 ], "year": 1956, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0469-01" ] }, { "cite": "107 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "181 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655896 ], "year": 1921, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/181/0311-01" ] }, { "cite": "299 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "211" } ], "opinion_index": 0 }, { "cite": "307 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563923 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0485-01" ] }, { "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" ] } ], "analysis": { "cardinality": 882, "char_count": 25181, "ocr_confidence": 0.765, "pagerank": { "raw": 8.919803056698028e-08, "percentile": 0.5005000291522788 }, "sha256": "e87738b0b5d4ee996f587b646a376ae5b3512b8f5c833982982147462ec8adc6", "simhash": "1:2b55fc66242da75a", "word_count": 4208 }, "last_updated": "2023-07-14T15:19:51.258099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BEATRICE H. HOLLOWELL v. JAMES RODNEY HOLLOWELL and wife, KAY MUNROE HOLLOWELL; TERESA H. WILLIAMS and husband, DAVID WILLIAMS; CATHY HOLLOWELL PEARCE and husband, LESTER PEARCE; DEBRA JOAN HOLLOWELL (Unmarried), and LOUISIANA-PACIFIC CORPORATION" ], "opinions": [ { "text": "FRYE, Justice.\nIn this case we decide whether the Court of Appeals erred in affirming the trial court\u2019s entry of partial summary judgment for plaintiff in which the trial court concluded that plaintiff possesses a one-fourth undivided interest in fee simple in the ninety-five acres of land in question. The resolution of this issue turns upon the proper construction of the will of Ed Langston who died on 30 May 1948. The determinative question is whether the testator\u2019s grandnephew, Milford Edgar Hollowell, at the time of his death, owned an interest in the land in question. If not, Milford Edgar Hollowell\u2019s widow (plaintiff) has no interest in the land and partial summary judgment in her favor must be reversed. If, on the other hand, Mdford Edgar Hollowed owned an interest in the land at the time of his death, then this interest passed to plaintiff under Milford Edgar Hollowell\u2019s will. We conclude that the trial court properly construed Ed Langston\u2019s will and that the testator\u2019s grandnephew, Milford Edgar Hollowed, owned an interest in the land at the time of his death which passed under Mdford Edgar Hodowed\u2019s will to plaintiff. Accordingly, the Court of Appeals did not err in affirming partial summary judgment in plaintiff\u2019s favor.\nOn 20 February 1948, three months before his demise, Ed Langston executed a will which in pertinent part provides:\nI give and devise ad of my lands, wherever situated, in equal portions to my nephews Milford Hollowed and Clarence Hollpwell, for and during the term of their natural lives, and upon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes.\nIf either of my said two nephews shad die without issue surviving him the share of such deceased shad go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes.\nThe central issue in interpreting the will is whether the testator intended the contingent remainders to the surviving issue to vest upon the death of each of the life tenants or only upon the death of both life tenants. The Court of Appeals held that it was the testator\u2019s intent to create two separate lines of descent, each operating independent of the other and the contingent remainders were to vest upon the death of each life tenant. We agree.\nThe testator, Ed Langston, had three brothers and one sister, Lula Langston Hollowell. Ed Langston was the last of the five to die, and at the time of his death he had never married and had no children. He was survived by at least two nephews, Milford Hollowell and Clarence Hollowell, children of his sister, Lula.\nTo determine when the contingent remainders vested, there are two critical dates which must be considered \u2014 the date of Ed Langston\u2019s death and the date of the death of the first of the named life tenants to die. The first date is illustrated by Chart A and the second date is illustrated by Chart B.\nChart A illustrates the Langston family tree at the time Ed Langston executed his Last Will and Testament on 20 February 1948 and at the time of his demise on 30 May 1948. James Rodney Hollowell (James R. Hollowell), whose name is capitalized, is the only family member shown on the chart who is a party to this action.\nMilford Hollowell died in 1972, survived by Milford Edgar Hollowell and James R. Hollowell. Both James R. Hollowell and Milford Edgar Hollowell were born before the testator executed his will. Milford Edgar Hollowell died testate in 1980 survived by plaintiff and three children from a previous marriage, Teresa H. Williams, Cathy H. Pearce and Debra Joan Hollowell. His will devised all of his estate to plaintiff.\nChart B illustrates the Langston family tree at the time of Milford Hollowell\u2019s (Ed Langston\u2019s nephew) demise in 1972. Family members whose names are capitalized are parties to this action.\nOn 26 July 1986 Clarence Hollo well died intestate, leaving no issue. Apparently believing that they held all the interests in question, the individual defendants partitioned the property and conveyed the parcels to one another by division deeds. Plaintiff received no conveyance in these transactions.\nOn 17 December 1987, the individual defendants conveyed an interest in all the standing timber and pulpwood on the property by timber deed to B & C Logging, Inc., which assigned its interest to Louisiana-Pacific Corporation.\nPlaintiff commenced this action by filing a complaint seeking a declaratory judgment construing the Last Will and Testament of Ed Langston and determining the ownership interests of the parties in the land in question. Plaintiff also sought to determine other rights and damages arising out of the ownership of the land. On 2 April 1991, the parties stipulated that if it is ultimately determined that plaintiff owns an interest in the property, defendant Louisiana-Pacific Corporation will be entitled to file pleadings as it shall deem necessary.\nAfter cross motions for summary judgment had been filed, the trial court, on 24 April 1991, granted plaintiff partial summary judgment and denied defendants\u2019 summary judgment motion. As part of the judgment, the trial court set aside the division deeds previously executed among the individual defendants. The trial court ultimately concluded that the present title to the ninety-five acres of land is vested in fee simple in the following tenants in common with their respective shares being:\nJames R. Hollowell one-half undivided interest\nBeatrice H. Hollowell one-fourth undivided interest\nTeresa H. Williams one-twelfth undivided interest\nCathy H. Pearce one-twelfth undivided interest\nDebra Joan Hollowell one-twelfth undivided interest\nThe Court of Appeals affirmed the trial court. We granted defendants\u2019 petition for discretionary review and we now affirm the Court of Appeals.\nI.\nAn elementary rule of will construction is \u201cthat the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy.\u201d Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960). Pittman v. Thomas, 307 N.C. 485, 299 S.E.2d 207 (1983), stated the well established rule:\n\u201cThe will must be construed, \u2018taking it by its four corners\u2019 and according to the intent of the testator as we conceive it to be upon the face thereof and according to the circumstances attendant.\u201d Patterson v. McCormick, 181 N.C. 311, 313, 107 S.E. 12 (1921). In referring to the \u201ccircumstances attendant\u201d we mean \u201cthe relationships between the testator and the beneficiaries named in the will, and the condition, nature and extent of [the testator\u2019s] property.\u201d Trust Co. v. Wolfe, 243 N.C. 469, 473, 91 S.E.2d 246, 250 (1956).\nPittman, 307 N.C. at 492-93, 299 S.E.2d at 211. Thus, our primary focus in interpreting Ed Langston\u2019s will is the testator\u2019s intent.\nAs a preliminary matter, we must first determine whether the testator intended to create a tenancy in common or a joint tenancy between the two life tenants, his nephews Milford and Clarence. We conclude that the language shows an intent for Milford and Clarence Hollowell to be tenants in common. In Langston\u2019s will there are two separate ways that he evidenced his intent to have the two nephews hold the property as tenants in common. First, the will provides that the land is devised \u201cin equal portions.\u201d The language \u201cequal portions\u201d shows an intent to create two separate but equal shares which is inconsistent with a joint tenancy which views the ownership to be single and unified. See Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests at 54-55 (2d ed. 1984) [hereinafter Bergin & Haskell]. Our Court of Appeals has held that the language \u201cshare equally\u201d shows an intent to create a tenancy in common rather than the presumptive tenancy by the entireties between a husband and wife. Dearman v. Bruns, 11 N.C. App. 564, 566, 181 S.E.2d 809, 811, cert. denied, 279 N.C. 394, 183 S.E.2d 241 (1971). Dating back to 1895, this Court has held that the phrase \u201cshare and share alike\u201d creates a tenancy in common. Midgett v. Midgett, 117 N.C. 8, 10, 23 S.E. 37, 38 (1895). We are convinced that the phrase \u201cequal portions,\u201d like \u201cshare equally\u201d and \u201cshare and share alike,\u201d evidences an intent to create a tenancy in common rather than a joint tenancy.\nThe second basis for our holding that a tenancy in common was created is the language in the will \u201cI give and devise their respective shares . . . .\u201d Defendants contend that the word \u201crespective\u201d is used in the will to clarify the division of the remainder interests in the two life estates. Plaintiff submits, and we agree, that by specifically stating in the will that the division is to be per stirpes there would be no need for clarification of how Ed Langston wanted his property to be distributed. Therefore, \u201crespective\u201d must be given another meaning. We conclude that Ed Langston included the word \u201crespective\u201d to emphasize his intent that vesting of the future interest occurred at the death of each life tenant rather than upon the death of both tenants.\nDefendants contend that plaintiff does not have any ownership interest in the ninety-five acres. The basis for defendants\u2019 argument is that the contingent remainder held by plaintiff\u2019s late husband, the testator\u2019s grandnephew Milford Edgar Hollowell, never vested. Therefore, according to defendants, Milford Edgar Hollowell never held a one-fourth interest in the property to leave to plaintiff, his second wife.\nIn order to answer the central issue in this case we must determine when the future interests created by Ed Langston\u2019s will vested. \u201cThe law favors the construction of a will which gives to the devisee a vested interest at the earliest possible moment that the testator\u2019s language will permit.\u201d Elmore v. Austin, 232 N.C. 13, 19, 59 S.E.2d 205, 210 (1950); Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341 (1942); McDonald v. Howe, 178 N.C. 257, 100 S.E. 427 (1919). Nonetheless, defendants contend that there was no vesting until both life tenants died. Under their argument, when Milford Hollowell died, the contingent remainder which his issue held did not vest. Defendants argue that it was not until Clarence Hollowell died that vesting occurred. Stated differently, defendants contend that when the first life tenant (Ed Langston\u2019s nephew Milford) died leaving issue, his issue held contingent remainders in fee that would vest only upon their surviving the death of the second life tenant (Ed Langston\u2019s nephew Clarence). Defendants cite the following cases in support of this contention. Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622 (1971); Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22 (1963); Biddle v. Hoyt, 54 N.C. (1 Jones Eq.) 159 (1854); Hooks v. Mayo, 94 N.C. App. 657, 381 S.E.2d 197 (1989), aff\u2019d per curiam, 326 N.C. 361, 388 S.E.2d 768 (1990); Cowgill v. Faulconer, 57 Ohio Misc. 6, 385 N.E.2d 327 (1978); Waugh v. Poiron, 315 Ill. App. 78, 42 N.E.2d 138 (1942).\nHowever, each of these cases can be distinguished on factual grounds. In both Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622, and Hooks v. Mayo, 94 N.C. App. 657, 381 S.E.2d 197, there was only one life tenant. This Court in Kale, and the Court of Appeals in Hooks, held that the survivorship requirement in each will should be construed to refer to the death of the life tenant rather than the testator. In the present case, there are two intervening life estates and there is no ambiguity in the will as to whether the grandnephews had to survive the testator in order to take their respective shares. In both Biddle v. Hoyt, 54 N.C. (1 Jones Eq.) 159, and Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22, the life tenants were husband and wife, while the life tenants here are brothers. In both Biddle and Strickland, the future interests at issue were to the surviving children of the marriage, a contingency clearly distinguishable from the instant case.\nIn addition to the fact that Waugh v. Poiron, 315 Ill. App. 78, 42 N.E.2d 138 and Cowgill v. Faulconer, 57 Ohio Misc. 6, 385 N.E.2d 327, are not binding precedent for this Court, the facts and issues in each are also distinguishable from the present case. The will in Waugh, for example, did not contain the clarifying language present in the Langston will: \u201cupon their deaths I give and devise their respective shares . . . .\u201d In Cowgill, the issue before the court was whether those claiming an interest in the estate had to survive the death of the testator. As previously mentioned, survivorship of the testator is not an issue in the instant case.\nThe pertinent language in the Langston will which we must interpret in order to determine the time of vesting is \u201cupon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes.\u201d (Emphasis added.) Defendants argue that the word \u201cthem\u201d requires the remaindermen to survive both of the life tenants before vesting occurs. We disagree. Reading the will as a whole, we conclude the word \u201cthem\u201d must be interpreted with reference to the words \u201ctheir respective issue.\u201d So interpreted, this word causes no impediment to allowing vesting to occur when the first life tenant dies.\nIn this case, Milford Edgar Hollowell and James R. Hollowell each had to survive their father in order for their contingent remainder to vest. A remainder interest is contingent when it is \u201ceither subject to a condition precedent (in addition to the natural expiration of prior estates), or owned by unascertainable persons, or both.\" Bergin & Haskell, at 73. In the present case, the future interest was contingent since there was a survivorship requirement. The triggering event for the contingent remainder to vest was Milford Edgar Hollowell and James R. Hollowell surviving both the testator and their father Milford Hollowell. When Milford Hollowell died, Milford Edgar Hollowell and James R. Hollowell\u2019s contingent remainders became vested remainders in fee simple since they survived both the testator and their father.\nA case factually similar to the instant one is Williams v. Johnson, 228 N.C. 732, 47 S.E.2d 24 (1948). The Court in Williams interpreted a will which devised property to the testator\u2019s grandchildren \u201cfor and during the term of their natural lives . . . then to their . . . issue surviving them . . . .\u201d Id. at 733, 47 S.E.2d at 25. This Court held that the language \u201ctheir\u201d and \u201csurviving them\u201d did not require the remaindermen to survive all the life tenants but that vesting was contingent upon their survival of the life tenant through whom the remaindermen took their interest. Id. at 735, 47 S.E.2d at 26. Thus, when one life tenant died the contingent remainder of each lineal descendant of that life tenant vested.\nDefendants distinguish Williams on the basis of additional language in the Williams will: \u201cin the event any of said grandchildren shall die, without leaving him surviving issue or issues, then to his next of kin in fee simple forever.\u201d Id. at 733, 47 S.E.2d at 25 (emphasis added). Defendants contend that the word \u201chim\u201d narrows the will so that vesting would occur upon the death of a life tenant and that that is the rationale for the Court\u2019s holding. We disagree. After determining the intent of the testator, this Court concluded that the words \u201ctheir\u201d and \u201csurviving them\u201d referred to the death of each life tenant. Id. at 735, 47 S.E.2d at 26. We likewise now conclude that Ed Langston\u2019s intent was to devise the property in question as two life estates with contingent remainders vesting upon the death of each life tenant.\nOne of the basic rules of will construction is to \u201cgive effect to the general intent of the testator as that intent appears from a consideration of the entire instrument . . . [and] the intent of the testator must be ascertained from a consideration of the will as a whole and not merely from consideration of specific items or phrases of the will taken in isolation.\u201d Adcock v. Perry, 305 N.C. 625, 629, 290 S.E.2d 608, 611 (1982) (citation omitted); Wilson v. Church, 284 N.C. 284, 200 S.E.2d 769 (1973). Defendants\u2019 argument that Ed Langston\u2019s intent was for the contingent remainders to vest only after the deaths of both life tenants fails when one reads the will as a whole and gives effect to every word and phrase. We conclude that Ed Langston specifically wrote a paragraph into his will to further evidence his intent to have the remainder interests descend separately after each life tenant died. That paragraph is as follows:\nIf either of my said two nephews shall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes.\nIf this Court were to adopt defendants\u2019 argument this paragraph in the testator\u2019s will would be irrelevant and immaterial. There would be no need for a provision to solve the problem of one nephew dying without issue since no vesting would occur in any event until both nephews died.\nWe conclude that Ed Langston intended to create a tenancy in common between the two life tenants. Since the two life tenants held the land as tenants in common, the second paragraph also served to prevent the remainder interest of the first life tenant who died without issue from going back into the estate for failure of the contingent remainder to vest.\nAnticipating that this Court might conclude that the original interest between the two life tenants was a tenancy in common, defendants advance an alternative argument of implied cross remainders to support their position that both the trial court and the Court of Appeals erred in interpreting Ed Langston\u2019s will. Cross remainders are occasionally implied where there is more than one life tenant and the will dictates that the remainder interest is to go over as a whole. Trust Co. v. Miller, 223 N.C. 1, 7, 25 S.E.2d 177, 180 (1943). Courts will imply a cross remainder to prevent the rents and income of the deceased life tenant\u2019s interest from passing by intestacy. When the cross remainder is implied then the surviving life tenant enjoys the rents and income from the deceased life tenant\u2019s share. Once all life tenants die then the cross remainder is terminated. Id. at 7, 25 S.E.2d at 181. In order for this Court to imply a cross remainder, the testator\u2019s intent would have to be that at the end of the life estates there would be a gift over of all the property at once. Id. at 7, 25 S.E.2d at 180-81. As stated earlier, we believe that the testator\u2019s intent was not to.have a gift over of all the property at once. Instead, the testator intended to devise his property so that as each life tenant died leaving issue the contingent remainder would vest in the surviving issue of that life tenant. We see nothing in the will to suggest that the testator wanted to delay the taking of the fee by any surviving issue until both of the life tenants died. On the contrary, the consistent use of the word \u201crespective\u201d shares and \u201crespective\u201d issue evidences an intent that the property is to be devised separately rather than devised all at once. Therefore, the doctrine of implied cross remainders is inapplicable since there is no question as to what should happen to Milford Hollowell\u2019s one-half interest upon his death.\nDefendants\u2019 last argument for preventing plaintiff from receiving her one-fourth share is based on the contention that it was the testator\u2019s intent that the property remain in the family. In determining the testator\u2019s dominant intent, we find nothing in the will as a whole to suggest an intent to require that the property remain in the family. First, the testator does not designate the property as the \u201cfamily farm\u201d but instead makes an encompassing devise of \u201call his lands, wherever situated\u201d to two of his nephews, Milford and Clarence. Second, one of the testator\u2019s nephews, Roland Hollowell, received a cash bequest of $1,000. Except for a residuary clause, there was no provision for Roland Hollowell to be an alternative taker in case the real property did not pass to Milford and Clarence. Also, no trust was created to ensure that the land remained in the Langston-Hollowell family. The will includes no specific restrictions or limitations on the use or alienation of the property, nor is there a provision making the remainder interests subject to divestment if certain events occurred.\nWe conclude that the trial court and the Court of Appeals properly construed the will in accord with Ed Langston\u2019s intent for Milford and Clarence Hollowell to each have a one-half undivided life estate interest in the land to share as tenants in common. Upon Milford\u2019s death, the contingent remainder of one-half undivided interest in the property vested in his surviving issue in fee simple since he was survived by issue. Milford Edgar Hollowell, as one of Milford Hollowell\u2019s two surviving issue, received a one-fourth undivided interest in fee simple in the ninety-five acres. Milford Edgar Hollowell could, and did, devise this interest to plaintiff. James R. Hollowell, as the other of Milford Hollo well\u2019s surviving issue, also received a one-fourth undivided interest. After Clarence Hollowell\u2019s death, in accordance with the second paragraph of the will, the remaining one-half undivided interest vested in fee in James R. Hollowell and the issue of Milford Edgar Hollowell per stirpes. James R. Hollowell received another one-fourth undivided interest making his total interest one-half. The issue of Milford Edgar Hollowell each received a one-twelfth undivided interest in the ninety-five acre tract of land.\nFor the reasons stated herein, the decision of the Court of Appeals is AFFIRMED.\n. Ed Langston\u2019s will bequeathed $1000 to a nephew, Roland Hollowell. The record does not indicate whether Roland survived the testator.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Jonathan S. Williams and J. Darby Wood, P.A., by J. Darby Wood, for plaintiff-appellee.", "Dees, Smith, Powell, Jarrett, Dees & Jones, by Tommy W. Jarrett, for defendant-appellants." ], "corrections": "", "head_matter": "BEATRICE H. HOLLOWELL v. JAMES RODNEY HOLLOWELL and wife, KAY MUNROE HOLLOWELL; TERESA H. WILLIAMS and husband, DAVID WILLIAMS; CATHY HOLLOWELL PEARCE and husband, LESTER PEARCE; DEBRA JOAN HOLLOWELL (Unmarried), and LOUISIANA-PACIFIC CORPORATION\nNo. 333PA92\n(Filed 4 June 1993)\n1. Wills \u00a7 53 (NCI3d)\u2014 devise to life tenants \u2014use of \u201cequal portions\u201d and \u201crespective\u201d \u2014tenants in common\nWhere testator\u2019s will devised all of his lands \u201cin equal portions\u201d to his two nephews \u201cfor and during the terms of their natural lives,\u201d provided that \u201cupon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes,\u201d and further provided that if either nephew \u201cshall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes,\u201d the testator intended for his nephews to be tenants in common rather than joint tenants. The phrase \u201cequal portions\u201d evidenced an intent to create a tenancy in common rather than a joint tenancy, and the word \u201crespective\u201d emphasized testator\u2019s intent that vesting of the future interest should occur at the death of each life tenant rather than upon the death of both tenants.\nAm Jur 2d, Wills \u00a7\u00a7 1127, 1128, 1288.\n2. Wills \u00a7 35.1 (NCI3d|\u2014 devise to life tenants \u2014 contingent remainders \u2014 time of vesting\nWhere testator\u2019s will devised all of his lands \u201cin equal portions\u201d to two nephews \u201cfor and during the terms of their natural lives,\u201d provided that \u201cupon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes,\u201d and further provided that if either nephew \u201cshall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes,\u201d the testator intended the contingent remainders to the surviving issue to vest upon the death of each of the life tenants rather than only upon the death of both life tenants. Thus, when the first life tenant died leaving issue, the contingent remainder of each lineal descendant of that life tenant vested.\nAm Jur 2d, Wills \u00a7\u00a7 1127, 1128; Estates \u00a7\u00a7 219, 220, 245.\n3. Wills \u00a7 35.2 (NCI3d)\u2014 doctrine of implied cross remainders \u2014 inapplicability\nThe doctrine of implied cross remainders was inapplicable where the testator intended to devise his property so that as each life tenant died leaving issue the contingent remainder would vest in the surviving issue of that life tenant and did not intend to have a gift over of all the property at once.\nAm Jur 2d, Estates \u00a7\u00a7 230, 231, 245.\nOn defendants\u2019 petition for discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a decision of the Court of Appeals, 107 N.C. App. 166, 420 S.E.2d 827 (1992), which affirmed a judgment entered for plaintiff by Duke, J., at the 22 April 1991 Civil Session of Superior Court, Wayne County. Heard in the Supreme Court 15 March 1993.\nJonathan S. Williams and J. Darby Wood, P.A., by J. Darby Wood, for plaintiff-appellee.\nDees, Smith, Powell, Jarrett, Dees & Jones, by Tommy W. Jarrett, for defendant-appellants." }, "file_name": "0706-01", "first_page_order": 754, "last_page_order": 766 }