Opinion
No. 07-392.
Filed March 4, 2008.
Rowan County No. 05CVS2954.
Appeal by defendants from judgment entered 21 December 2006 by Judge Andy Cromer in Rowan County Superior Court. Heard in the Court of Appeals 29 October 2007.
Woodson, Sayers, Lawther, Short, Parrott Walker, LLP, by Donald D. Sayers and Andrew J. Abramson, for plaintiff appellee. Harris, Winfield Hodges, LLP, by H. Clay Hodges, for defendant appellants.
FACTS
On 25 December 1987, Patrick Hershel Majors handwrote a will disposing of his estate ("25 December will"). The 25 December will provides as follows:
As discussed, the 25 December will and the subsequent will, dated 26 December 1987, were holographic wills written by the testator. Due to the testator's poor handwriting, the transcription of these wills may contain errors. Further, certain portions of the wills have been reformatted and the spelling and grammar have been corrected to allow for enhanced clarity. However, the language of the two wills is sufficiently clear, with regard to the issues on appeal, to allow for this Court's review.
North Carolina
Rowan County
Last Will and Testament
I, Patrick Hershel Majors, a legal resident of Rowan County, North Carolina do hereby nominate, constitute, and appoint Glenn Allen Majors my executor of my estate and request that he be permitted to serve without bond and without surety thereon.
I hereby authorize my executor to distribute my estate as follows and to have full authority to act in all matters and things that may arise in the course of distributing and disposing of my estate and to dispose of any things not listed as he deems appropriate:
To: Glenn Allen Majors Rowan County, North Carolina
1. Real estate known as Rowan County, N.C. MAP723 — 0171.57 ac
2. One-third of the net income from:
a. Hallmark Inn Note
b. Eagle (Boxwood) Motel Note
c. Lease in Iredell County property to Bill Volk
3. One third of the cash in banks and C.D.'s after all expenses are paid
4. One 1984 Mazda pick-up truck
5. All Food Lion Class "A" stock
6. At the end of the twenty-five year lease to Bill Volk on Iredell County Property that property shall belong to and become the property of Glenn Allen Majors. In the event the purchase option is exercised by the present lessee prior to the completion of the lease, the net of money received for the sale of the property shall be divided as follows:
a. Seventy percent to Glenn Allen Majors b. Fifteen percent to Patricia Majors Fowlkes
c. Fifteen percent to David Phillip Majors
To: David Phillip Majors real estate known as Rowan County:
1. a. MAP 723-009-23.40 ac Foster Rd
b. MAP 720-022-80 ac Mt. Vernon Rd
c. MAP 720-007-163.81 ac Needmore Rd.
This is contingent upon and provided that he transfer fifteen acres of land adjacent to Rowan County map 723-017 1.57 acres Foster Rd. at no cost to Glenn Allen Majors.
2. One third of the net income from:
a. Hallmark Inn Note
b. Eagle (Boxwood) Motel Note
c. Lease on Iredell County property to Bill Volk
3. One third of the cash in Banks and C.D.'s after all expenses are paid.
4. One 1986 Oldsmobile Delta 88 four door sedan
5. Any and all farm trucks and tractors and implements.
To: Patricia Majors Fowlkes
1. all Food Lion Class "B" stock
2. all MMT stock
3. all Walmart stock
4. all Polaris stock
5. One third of the net income from
a. Hallmark Inn Note
b. Eagle (Boxwood) Motel Note
c. Lease on Iredell County Property to Bill Volk
6. One third of cash in banks and C.D.'s after all expenses are paid.
Patrick Hershel Majors
December 25, 1987
On 26 December 1987, Patrick Majors handwrote a second will disposing of his estate ("26 December will"). The 26 December will provides as follows:
Last Will and Testament
I Patrick Hershel Majors now residing in and a legal resident of Rowan County, North Carolina do hereby give, devise, and bequeath to my wife Claire Allen Majors now residing in Rowan County, North Carolina all my estate and all of the property of which I may now own whatsoever kind in nature, real and personal wheresoever it may be situated. I hereby nominate, constitute and appoint my wife, Claire Allen Majors of Rowan County North Carolina as my executrix and request that she be permitted to serve without bond and without surety thereon.
I hereby authorize and empower my executrix in her absolute discretion to sell, exchange, convey, transfer, assign, mortgage, pledge, invest or reinvest the whole or any part of my real or personal estate.
Patrick Majors
Dec 26, 1987
Patrick Majors died on 16 September 2001, leaving the two aforementioned wills. On 14 November 2005, David P. Majors ("plaintiff") filed a complaint seeking a declaratory judgment in Rowan County Superior Court. Specifically, plaintiff sought a declaration from the trial court that the 26 December will did not revoke the earlier 25 December will. Plaintiff subsequently filed a motion for summary judgment on the ground that no genuine issue existed as to any material fact. On 21 December 2006, the trial court granted summary judgment in favor of plaintiff, and held the 25 December will should be given full force and effect. Glenn A. Majors and Patricia Majors Fowlkes ("defendants") filed notice of appeal on 17 January 2007 and 26 January 2007, respectively.
I.
Defendants argue the trial court erred by granting summary judgment in favor of plaintiff. Specifically, defendants argue the 26 December will expressly revoked the testator's 25 December will. Although the 26 December will makes no mention of the earlier will, defendants contend the language "I Patrick Hershel Majors . . . do hereby give, devise, and bequeath to my wife Claire Allen Majors . . . all my estate and all of the property of which I may now own whatsoever kind in nature, real and personal wheresoever it may be situated[,]" serves as an express revocation of the 25 December will. According to defendants, this language in the 26 December will effectively disposed of Patrick Majors' entire estate in a fundamentally different way than described in the 25 December will. Thus, defendants contend the 26 December will is incapable of being read together with the earlier 25 December will. We disagree.
"A motion for summary judgment shall be granted when the evidence reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Forsyth County v. York, 19 N.C. App. 361, 363, 198 S.E.2d 770, 771, cert. denied, 284 N.C. 253, 200 S.E.2d 653 (1973). As the parties concede that both the 25 December will and the 26 December will were validly executed, the question of their validity is not before this Court. Rather, the question before this Court is one of interpretation. There are several basic rules that apply to the interpretation of wills. Adcock v. Perry, 305 N.C. 625, 629, 290 S.E.2d 608, 611 (1982). First, and most basic, is the rule that the intent of the testator serve as "`the polar star that must guide the courts in the interpretation of a will.'" Id. (citation omitted). Second, the Court must endeavor "to give effect to the general intent of the testator as that intent appears from a consideration of the entire instrument[.]" Id. Third, "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." Id. Where the terms are uncertain or ambiguous, the Court should apply the established rules for construction of a will. Joyner v. Duncan, 299 N.C. 565, 576-77, 264 S.E.2d 76, 86 (1980). "The intent of the testator is determined from the entire instrument so as to harmonize, if possible, provisions which would otherwise be inconsistent." Id. at 577, 264 S.E.2d at 86. Thus, apparent conflicts will be reconciled where it is possible to do so consistent with the testator's intent. Id.
Here, the 25 December will provides for a number of specific devises to various individuals, with the remainder of the estate to be distributed at the discretion of Glenn A. Majors, the named executor. In contrast, the 26 December will devises the entire estate to the testator's wife, Claire Majors. Thus, the terms of the two wills appear to conflict. Given this apparent conflict, this Court must examine the two wills within the framework of the established rules in an effort to determine the testator's intent. To give effect to the testator's intent, as evidenced by his will, this Court must determine if the 26 December will was intended to revoke the 25 December will, or if it was intended to act as a codicil to the prior will. The revocation of written wills is governed by N.C. Gen. Stat. § 31-5.1 (2007), which provides:
A written will, or any part thereof, may be revoked only
(1) By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills, or
(2) By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in his presence and by his direction.
Id. "A will may be revoked by a subsequent instrument executed solely for that purpose, or by a subsequent will containing a revoking clause or provisions inconsistent with those of the previous will, or by any of the other methods prescribed by law[.]"
In re Will of Wolfe, 185 N.C. 562, 565, 117 S.E. 804, 805-06 (1923). However, "the mere fact that a second will was made, although it purports to be the last, does not create a presumption that it revokes or is inconsistent with one of prior date." Id. at 565, 117 S.E. at 806. Upon review, we find that the language in the 26 December will did not serve as an express revocation of the 25 December will. Although it was executed only a day later, the 26 December will does not mention the 25 December will nor does it expressly revoke any of the specific devises contained in the earlier will. Rather, the later will simply provides a disposition of the estate which is inconsistent with the prior dispositions contained in the 25 December will. We have previously held that "[a] later will does not revoke an earlier one, without express words of revocation, unless the two are so inconsistent as to be incapable of standing together." Westfeldt v. Reynolds, 191 N.C. 802, 805, 133 S.E. 168, 170 (1926). If only a partial inconsistency is created by a subsequent will which does not expressly revoke the first, the final disposition will be determined "`by the light of both instruments together as a corrected whole.'" In re Venable's Will, 127 N.C. 344, 346-47, 37 S.E. 465, 466 (1900) (citation omitted). The court must then reconcile the various clauses of the will, if possible, "as the maker is presumed to have intended that all should take effect." Westfeldt, 191 N.C. at 805, 133 S.E. at 170. Therefore, we must now determine if the language in the 26 December will is so inconsistent with the 25 December will that the two documents cannot be reconciled.
In Westfeldt, our Supreme Court examined a will composed of three writings, each executed at a different time. Id. at 803, 133 S.E. at 169. Although one of the earlier documents provided for a specific devise of property, a later document purported to devise all of the testator's property in a different manner. Id. In upholding the validity of the earlier devise, our Supreme Court held:
[W]here a general disposition of the whole of the testator's property is preceded by specific devise of only a small part, it is held that the former must be understood as impliedly subject to the latter, and the property conveyed by the special devise will pass there under rather than under the universal disposition.
Id. at 805, 133 S.E. at 170. Thus, the two documents will be read in concert, "giving effect to both provisions." Id. In the instant case, the language in the 26 December will devising the testator's entire estate to Claire Majors amounted to a general devise of all of the testator's property, as it did not enumerate any specific property, either personal or real, that should be provided to Mrs. Majors. See Edmundson v. Morton, 332 N.C. 276, 283-84, 420 S.E.2d 106, 111 (1992) . Following the reasoning articulated by our Supreme Court in Westfeldt, we hold that the specific devises listed in the 25 December will may stand as exceptions to the general devise contained in the 26 December will, giving effect to both documents. Therefore, as no genuine issue of material fact remains, the trial court did not err in granting summary judgment and holding the 25 December will should be given full force and effect to the extent that it is reconcilable with the 26 December will.
Affirmed.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).