Lesane v. Chandler

175 S.E.2d 351, 9 N.C. App. 33, 1970 N.C. App. LEXIS 1270

• Court: Court of Appeals of North Carolina
• Decided: July 15, 1970
• Docket: No. 7013SC223
• Status: Published

Opinion

Bkitt, J.

Did Russell Lennon die intestate as to the lands in controversy? Construing the instrument in light of the following propositions, we conclude that he did not.

1. The dispositive word “bequeath” is sufficient to include both personalty and realty. Case v. Biberstein, 207 N.C. 514, 177 S.E. 802.

2. In its technical sense, “estate” refers to the degree, quantity, nature and extent of a person’s interest in land. Nicholson Corp. v. Ferguson, 114 Okla. 16, 243 P. 195. In its ordinary usage, “estate” embraces a testator’s entire property, real and personal. See Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E. 2d 246.

3. The words “personal estate” used in item four are sufficient to pass realty where such is the testator’s intention as determined according to the applicable rules of construction. Caracci v. Lillard, 7 Ill. 2d 382, 130 N.E. 2d 514; Davisson v. Sparrow, 97 Ohio App. 117, 97 N.E. 2d 694.

4. The phraseology of the will is ambiguous or uncertain, so the presumption against partial intestacy as a rule of construction is applicable. “The law presumes that when a man who is capable of doing so undertakes to make a will, he does not intend to die intestate as to any part of his property.” Case v. Biberstein, supra.

5. The presumption against intestacy means that “where a will is susceptible to two reasonable constructions, one disposing of all of testator’s property, and the other leaving part of the property undisposed of, the former construction will be adopted and the latter rejected * * Holmes v. York, 203 N.C. 709, 166 S.E. 889.

6. Testamentary recognition of the petitioners in item two coupled with their omission from the residuary clause indicates an intention to make a specific, limited bequest to them, and this bequest was made.

7. Item four is a residuary clause, and as such should be construed “so as to prevent an intestacy as to any part of the testator’s estate, unless there is an apparent intent to the contrary, plainly and unequivocally expressed in the writing.” Faison v. Middleton, 171 N.C. 170, 88 S.E. 141. The writing contains no such apparent intent.

The judgment of the superior court is

Affirmed.

Brock and Hedrick, JJ., concur.