Olive v. Biggs

170 S.E.2d 181, 6 N.C. App. 265, 1969 N.C. App. LEXIS 1174

• Court: Court of Appeals of North Carolina
• Decided: October 22, 1969
• Docket: No. 6912SC467
• Status: Published

Opinion

Mallaed, C.J.

Appellant’s first assignment of error is to the admission of certain evidence. The questions and the answers which are assigned as error are as follows:

“Q Mr. Cook, referring to Plaintiff’s Exhibit A, I will ask you if you have any knowledge of any agreement, apart from this suit, that is, apart from the will, itself, between Dr. Olive and his decedent wife, respecting the execution of this will?

A I have no knowledge of any agreement.

Q Do you have any knowledge, sir, of any agreement, apart from this Exhibit A, between Dr. Olive and his decedent wife,. Mrs. Olive, whereby they may have agreed that this will could not be changed by one without the consent of the other?

A I know of no such agreement.

Q Do you have any knowledge, sir, of any agreement between Dr. Olive and his decedent wife, Mrs. Olive, apart from this Exhibit A, whereby each might have undertaken to have kept this exhibit as their only will?

ATTORNEY WORTH: As what?

ATTORNEY WEAVER: As their only will.

Objection by Attorney McLeod.

COURT: Overruled.

Q You may answer.

A Any agreement that this would be their only will?

Q Yes, sir.

A No agreement, other than what is contained in this will.”

All of these questions and answers related to what knowledge, if any, the witness may have had with respect to the existence of a contract between Robert M. Olive, Sr., and his deceased wife. The question of whether there was such a contract in existence was material to the inquiry in this case. The court did not commit error in the admission of such testimony.

Tolar excepted and assigned as error the finding of fact numbered 10, which reads as follows:

“That there was no contract, apart from the joint will of February 25th, 1965, which was executed by the plaintiff and his decedent wife, Ruth Sedberry Olive, respecting the execution of the aforesaid joint will, nor any contract between such parties that the aforesaid joint will of February 25th, 1965, could not be changed by one without the consent of the other, or any such contract that the aforesaid joint will of February 25th, 1965, was to be the only will of the plaintiff and his decedent wife, Ruth Sedberry Olive.”

In 97 C.J.S., Wills, § 1364, it is said:

“A conjoint will implies that the testators own the property in common.”

* * *

“A joint will is a single testamentary instrument constituting or containing the wills of two or more persons, and jointly executed by them.”

* * *

“A joint will wholly reciprocal in its provisions and providing that the survivor shall succeed, at the death of the maker first to die, to all of the latter’s estate is, in effect, only the separate will of the one dying first.”

“Mutual wills are the separate wills of two or more persons which are reciprocal in their provisions, or wills executed in pursuance of a compact or agreement between two or more persons to dispose of their property, to each other or to third persons, in a particular mode or manner.”

“Reciprocal wills are those in which each of two or more testators makes a" testamentary disposition in favor of the other or others.”

The will before us is a single instrument, jointly executed, purporting to contain the wills of Robert M. Olive, Sr., and his deceased wife. It thus has some of the characteristics of a joint will.

This will attempts to devise, after the death of the survivor, certain property owned by Robert M. Olive, Sr., and his deceased wife as tenants by entirety. This causes it to contain some of the characteristics of a conjoint will.

Further, the will before us makes a testamentary disposition in favor of the two persons who executed it. It thus has some of the characteristics of a reciprocal will.

Appellant Tolar contends that the court committed error in ruling as a matter of law that the paper writing under consideration in this case did not contain or constitute a contract to enter into such a will or a contract that said will is to remain in effect until the death of the survivor and thereby become the will of the survivor.

In Godwin v. Trust Co., 259 N.C. 520, 131 S.E. 2d 456 (1963), it was held that a trust agreement executed by the husband and wife prior to the execution by them of separate wills was incorporated by reference in the wills. It was also held that the respective wills were executed pursuant to an agreement entered into by the husband and wife and that their mutual agreement was sufficient consideration to bind them and that the trust agreement took effect as a part of each will respectively, even though the trust agreement was void because not executed in conformity with the provisions of G.S. 52-12 as it then was. (Similar provisions are now contained in G.S. 52-6.) The Court said:

“In our opinion, when the wills of the Griffins are considered in light of the provisions contained in the trust agreement, which agreement was incorporated by reference in both wills as containing the provisions for the disposition of their respective estates, the wills themselves establish the existence of the contract and the plaintiff is entitled to specific performance for the benefit of the beneficiaries named in the mutual wills, and we so hold.”

In the ease of Walston v. College, 258 N.C. 130, 128 S.E. 2d 134 (1962), it is said:

“It is stated in Anno- — -Joint, Mutual, or Reciprocal Wills, 169 A.L.R., at page 22, ‘The general rule is that a will jointly executed by two persons, being in effect the separate will of each of them, is revocable at any time by either one of them, at least where there is no contract that the joint will shall- remain in effect * * citing Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696.

In Ginn v. Edmundson, supra, where a husband and wife made a joint will disposing of property held as tenants by the entire-ties, it was held that the survivor could revoke the will at pleasure and take the property free of the will. The Court said: ‘A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons, and a mutual or reciprocal will is one in which two or more persons make mutual or reciprocal provisions in favor of each other.

'* * * .yje absence of contract based upon consideration, such wills may be revoked at pleasure. * * *

'The will before us belongs to the class of joint or conjoint wills, as it is a disposition of the property owned by the husband and wife by the entireties to third persons, and there is no reason why the wife could not, after the death of her husband, revoke the will and dispose of the property as if it had not been signed by her.’

In Clements v. Jones, 166 Ga. 738, 144 S.E. 319, the Court said: ‘The general rule is * * * that if two persons executed wills at the same time, either by one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation. * * * (T)o enable one to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their reciprocal provisions; but the existence of a clear and definite contract must be alleged and proved, either by proof of an express agreement, or by unequivocal circumstances.’

It is said in 97 CJS., Wills, section 1367, page 301: '* * * (T)he agreement, in order to make the wills mutual, and to be enforceable, must be more than a mere agreement to make wills, or to make the wills which in fact are made: it must involve the assumption of an obligation to dispose of the property as therein provided, or not to revoke such wills, which are to remain in force at the death of the testators.’ ”

The general rule is that, in the absence of a valid contract, the concurrent execution of a joint, conjoint, or reciprocal will, with full knowledge of its contents by those executing, is not enough to establish a legal obligation to forbear revocation,. either before or after the death of a party thereto. Godwin v. Trust Co., supra; Walston v. College, supra; In re Davis’ Will, 120 N.C. 9, 26 S.E. 636 (1897); 169 A.L.R. 68.

We are of the opinion and so hold that the trial court, in view of the admissions by appellant in the pleadings, together with the stipulations, and the- evidence, made appropriate findings based thereon and correctly adjudged that there was no contract between Robert M. Olive, Sr., and his deceased wife relating to making the will in question and that the instrument itself did not constitute a contract between them.

Appellant assigns as error the ruling of the court that plaintiff acquired a fee simple title to the properties of his decedent wife, Ruth Sedberry Olive, under the will dated 25 February 1965.

There is an apparent conflict between the provisions of item two and the provisions of items three through twelve. In item two, the property is given to the survivor in fee simple, and items three through twelve attempt to deal with the same property devised and bequeathed in item two in addition to the property owned by entirety.

The language in item two of the will is clear. It devises and bequeaths “all of his or her property, unconditionally and in fee simple, to the survivor, in the event that one of us survives the other.” Robert M. Olive, Sr., became the survivor upon the death of Ruth Sedberry Olive.

The real property described in the will in items three, four, seven, and subparagraphs numbered 1, 2, and 3 in item five, and one of the lots described in item six, were owned by them as tenants by entirety. Ruth Sedberry Olive owned the house and lot on Grove Street described in subparagraph number 4 under item five and one of the lots described in item six. Robert M. Olive, Sr., owned the two houses and lots on Bell Street and one vacant lot on New York Street described in subparagraph number 4 under item five.

“The first great rule in the construction of wills is that the intention of the testator must prevail, provided it can be effectuated within the limits which the law prescribes.” Raines v. Osborne, 184 N.C. 599, 114 S.E. 849 (1922). In the case of McCain v. Womble, 265 N.C. 640, 144 S.E. 2d 857 (1965), the Supreme Court said:

“This Court has repeatedly held that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. This intent is to be gathered from a consideration of the will from its four corners, and such intent should be given effect unless contrary to some rule of law or at variance with public policy.”

Another general rule is that when the primary purpose and a secondary purpose of a testator conflict and are inconsistent with each other, that which is primary will control that which is secondary. Moore v. Langston, 251 N.C. 439, 111 S.E. 2d 627 (1959); Coffield v. Peele, 246 N.C. 661, 100 S.E. 2d 45 (1957).

In the case of Coppedge v. Coppedge, 234 N.C. 173, 66 S.E. 2d 777 (1951), the Supreme Court said:

“In construing a will, the entire instrument should be considered; clauses apparently repugnant should be reconciled and effect given where possible to every clause or phrase and to every word. 'Every part of a will is to be considered in its construction, and no words ought to be rejected if any meaning can possibly be put upon them. Every string should give its sound,' Edens v. Williams, 7 N.C. 27. Williams v. Rand, supra; Lee v. Lee, 216 N.C. 349, 4 S.E. 2d 880; Bell v. Thurston, 214 N.C. 231, 199 S.E. 93; Roberts v. Saunders, 192 N.C. 191, 134 S.E. 451. But, where provisions are inconsistent, it is a general rule in the interpretation of wills, to recognize the general prevailing purpose of the testator and to subordinate the inconsistent provisions found in it.”

Appellee contends, and we agree, that to preserve the dominant purpose of the testator, give meaning to all parts of the will and to prevent irreconcilable repugnancies, the dominant purpose of Robert M. Olive, Sr., and his wife, Ruth Sedberry Olive by the language used was: (1) to provide for the survivor; and (2) to provide that if the two of them should die simultaneously, the disposition of all of- their property, was to be as set out in items three through twelve of the instrument.

Applying the applicable rules to the will under consideration, we are of the opinion and so hold that the dominant or primary purpose of the testator, Ruth Sedberry Olive, was to devise and bequeath all of her individual property in fee simple to her husband, Robert M. Olive, Sr., which she did under item two of the will. No reason has been shown why Robert M. Olive, Sr., could not dispose of the real property devised to him under the will of Ruth Sedberry Olive.

After careful consideration of all of appellant’s assignments of error, we are of the opinion that no prejudicial error is made to appear. The judgment entered by the Superior Court herein is

Affirmed.

MoRRis and HedRICk, JJ., concur.