In re the Estate of Baumann

Court of Appeals of North Carolina

In re the Estate of Baumann

379 S.E.2d 107, 93 N.C. App. 782, 1989 N.C. App. LEXIS 392

CourtCourt of Appeals of North Carolina

DecidedMay 16, 1989

DocketNo. 8824SC752

StatusPublished

This text of 379 S.E.2d 107 (In re the Estate of Baumann) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Baumann, 379 S.E.2d 107, 93 N.C. App. 782, 1989 N.C. App. LEXIS 392 (N.C. Ct. App. 1989).

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Opinion

HEDRICK, Chief Judge.

Respondents Jenefred and Mike Church and .respondent Fred C. Spann have raised questions concerning the correct construction of testatrix’ will. The intention of the testatrix as gathered from the four corners of the will is our controlling guide in such interpretation. Campbell v. Jordan, 274 N.C. 233, 162 S.E. 2d 545 (1968).

In this case, respondents Jenefred and Mike Church specifically contend the trial court erred in concluding that bequests of [784]*784“a sum of money ( )” made in the will were void for vagueness. We disagree. There is generally a presumption in construing a will that a testatrix did not intend to die intestate as to any part of his or her property. Poindexter v. Trust Co., 258 N.C. 371, 128 S.E. 2d 867 (1963). However, where partial intestacy cannot be avoided even if language of the will is interpreted as disposing of the property in question, this presumption against partial intestacy cannot be applied. Ravenel v. Shipman, 271 N.C. 193, 155 S.E. 2d 484 (1967). For this reason, respondents’ argument that the language in question should be construed as a residuary clause so as to avoid partial intestacy is meritless since such an interpretation would not prevent partial intestacy as to the real property.

Furthermore, the bequests of “a sum of money” along with a blank space bracketed by parentheses could hardly be construed as a residuary clause. We therefore agree with the trial court that such attempted bequests fail due to vagueness. Whether the testatrix chose to not provide for respondents or merely forgot to write amounts in the parentheses is irrelevant. No court may provide a dollar amount where the intent of the testatrix, taken from the four corners of the will, is uncertain. Respondents’ argument is without merit.

Respondent Fred C. Spann argues that the trial court erred in ruling that use of the term “possessions” referred only to the personal property of the testatrix and not to real property, and that he is entitled to one-half of all real property as well as personal property. We agree with Judge Lamm’s conclusion that the term “possessions” refers only to personal property since the testatrix showed an intention to differentiate between personal property and real property by using the term “real estate” in another section of the will. That the testatrix would devise one-half of her real property to respondent and then make specific devises of real property to others is unlikely to have been the intent of the testatrix as gathered from the four corners of the will. Respondent’s argument is without merit.

The judgment of the superior court is affirmed.

Affirmed.

Judges WELLS and EAGLES concur.

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HEDRICK, Chief Judge.

Respondents Jenefred and Mike Church and .respondent Fred C. Spann have raised questions concerning the correct construction of testatrix’ will. The intention of the testatrix as gathered from the four corners of the will is our controlling guide in such interpretation. Campbell v. Jordan, 274 N.C. 233, 162 S.E. 2d 545 (1968).

In this case, respondents Jenefred and Mike Church specifically contend the trial court erred in concluding that bequests of [784]*784“a sum of money ( )” made in the will were void for vagueness. We disagree. There is generally a presumption in construing a will that a testatrix did not intend to die intestate as to any part of his or her property. Poindexter v. Trust Co., 258 N.C. 371, 128 S.E. 2d 867 (1963). However, where partial intestacy cannot be avoided even if language of the will is interpreted as disposing of the property in question, this presumption against partial intestacy cannot be applied. Ravenel v. Shipman, 271 N.C. 193, 155 S.E. 2d 484 (1967). For this reason, respondents’ argument that the language in question should be construed as a residuary clause so as to avoid partial intestacy is meritless since such an interpretation would not prevent partial intestacy as to the real property.

Furthermore, the bequests of “a sum of money” along with a blank space bracketed by parentheses could hardly be construed as a residuary clause. We therefore agree with the trial court that such attempted bequests fail due to vagueness. Whether the testatrix chose to not provide for respondents or merely forgot to write amounts in the parentheses is irrelevant. No court may provide a dollar amount where the intent of the testatrix, taken from the four corners of the will, is uncertain. Respondents’ argument is without merit.

Respondent Fred C. Spann argues that the trial court erred in ruling that use of the term “possessions” referred only to the personal property of the testatrix and not to real property, and that he is entitled to one-half of all real property as well as personal property. We agree with Judge Lamm’s conclusion that the term “possessions” refers only to personal property since the testatrix showed an intention to differentiate between personal property and real property by using the term “real estate” in another section of the will. That the testatrix would devise one-half of her real property to respondent and then make specific devises of real property to others is unlikely to have been the intent of the testatrix as gathered from the four corners of the will. Respondent’s argument is without merit.

The judgment of the superior court is affirmed.

Affirmed.

Judges WELLS and EAGLES concur.

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379 S.E.2d 107, 93 N.C. App. 782, 1989 N.C. App. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-baumann-ncctapp-1989.

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