Tucker v. Westlake

523 S.E.2d 139, 136 N.C. App. 162, 1999 N.C. App. LEXIS 1310
CourtCourt of Appeals of North Carolina
DecidedDecember 21, 1999
DocketNo. COA99-211
StatusPublished
Cited by1 cases

This text of 523 S.E.2d 139 (Tucker v. Westlake) 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
Tucker v. Westlake, 523 S.E.2d 139, 136 N.C. App. 162, 1999 N.C. App. LEXIS 1310 (N.C. Ct. App. 1999).

Opinion

LEWIS, Judge.

This case stems from a dispute over the ownership of property located at 528 Walnut Street in Statesville, North Carolina, which is presently titled in the name of defendant Anne Stewart Westlake. Plaintiff William A. Tucker, Jr. and Mrs. Westlake are brother and sister and the only children of Dorcas T. Tucker. In 1972, Dorcas Tucker purchased the Walnut Street property from the estate of her cousin, Ina Anderson, following Mrs. Anderson’s death. Because Mrs. Tucker’s husband would not co-sign the promissory note or deed of trust, the property was titled in the name of defendant Anne Westlake, with the accompanying promissory note signed by Mrs. Westlake and her husband, William Westlake, also a defendant here. Although defendants were the debtors of record, Mrs. Tucker subsequently made all the payments on the debt. The note has now been paid in full and the deed of trust has been canceled of record. Pursuant to a provision in Mrs. Anderson’s will, her husband, Thomas Anderson, lived on the property until his death in 1977. Mrs. Tucker then lived on the property from 1977 until 1994, when she died intestate.

Plaintiff William Tucker, Jr. claims that, despite the property being titled in his sister’s name, his mother actually owned the property by virtue of a resulting trust, since his mother paid for the property. Upon his mother’s death, he contends the property then passed to him and his sister by intestate succession, entitling him to a one-half undivided interest. Defendant Mrs. Westlake, on the other hand, claims that her mother intended the property to be a gift to her, such that she owns the property outright. At trial, the jury was only asked [164]*164to decide whether a resulting trust had been created by the actions of Mrs. Tucker. The jury answered in the negative, and plaintiffs now appeal.

Essentially, this case concerns Dorcas Tucker’s intent: did she intend to make a gift to her daughter of the Walnut Street property or create a resulting trust for her own benefit? In this regard, plaintiffs submit two evidentiary arguments for our consideration relating to that intent. First, they contest the admission of a copy of Mrs. Tucker’s purported last will and testament from 1961. It was found among her effects following her death, but the original has never been found or probated. It purports to leave all her property to defendant Anne Westlake. Because the will was never probated (Mrs. Tucker’s estate instead being distributed via intestacy), the trial judge allowed its introduction for the sole purpose of showing Mrs. Tucker’s intent. The jury was then given a limiting instruction to that effect. We conclude that the admission of this will in evidence was error.

Under our rules, all relevant evidence is admissible. N.C.R. Evid. 402. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.R. Evid. 401. In other words, evidence is relevant if it has any logical tendency, no matter how slight, to prove a fact at issue. State v. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986). The determination of relevancy must be measured in light of the issues actually before the jury at trial. Pearce v. Barham, 267 N.C. 707, 712, 149 S.E.2d 22, 26 (1966). Here, the only issue before the jury was Mrs. Tucker’s inter vivos intent in 1972 when she purchased the Walnut Street property and titled it in defendant Anne Westlake’s name. Even assuming the purported copy of the unprobated will is indeed a true indication of Mrs. Tucker’s intent, it only speaks to her intent in 1961 and thus has little or no bearing on her intent in 1972. More significantly, however, this is a will, which is testamentary in nature. How Mrs. Tucker purportedly intended to dispose of her property at her death simply bears no logical relation to how she intended to treat the Walnut Street property during her lifetime.

Though we have found no North Carolina case law discussing the introduction of unprobated wills into evidence, we find the following summary of the common law instructive:

[I]t is the general rule, both under statute and otherwise, that a probated will is admissible in evidence, and that an unprobated [165]*165will is not receivable into evidence .... [A]n unprobated will, under governing statute or otherwise, may not be admissible as evidence affecting title to property, although it may be admissible for purposes other than that of a will. Thus, such an unprobated instrument has been held admissible to show an acknowledgment of liability on the part of the testator, as for services rendered, or to show that one called as a witness against a later will is interested, as a devisee under the former will, in having the latter will set aside, and is therefore incompetent.

95 C.J.S. Wills § 579 (1957) (footnotes omitted). Defendants have done that which the common law forbade: introduce an unprobated will in evidence in an attempt to affect title to property. To admit such evidence circumvents all the rules of probate that have been formulated to ensure that a will represents the clear, unequivocal, and final intent of the decedent. Accordingly, the trial court erred by admitting the purported 1961 copy of Mrs. Tucker’s will, even if for the limited purpose of showing her intent.

Although the trial court erred by admitting the copy of Mrs. Tucker’s 1961 will into evidence, this does not end our inquiry. “It is fundamental that no reversal or new trial will be awarded where there is no prejudicial error.” Keels v. Turner, 45 N.C. App. 213, 219, 262 S.E.2d 845, 848, disc. review denied, 300 N.C. 197, 269 S.E.2d 624 (1980). We conclude that the admission of the 1961 will resulted in no prejudice to plaintiffs. The jury heard ample evidence suggesting Mrs. Tucker intended the Walnut Street property to be a gift to defendant Anne Westlake. Various tax listings submitted by Mrs. Tucker to Iredell County specifically listed Mrs. Westlake as the owner of the property. A neighbor testified that Mrs. Tucker always referred to the property as belonging to Mrs. Westlake. All the insurance policies on the home were titled by Mrs. Tucker in Mrs. Westlake’s name. And a building permit for certain work on the home was also issued in Mrs. Westlake’s name. Furthermore, there was evidence, including several letters plaintiff William Tucker, Jr. wrote to Mrs. Westlake, showing that Mr. Tucker himself understood the property belonged to her. In light of all this other evidence, we cannot say that plaintiffs were prejudiced by the trial court’s error.

Plaintiffs’ next evidentiary argument pertains to the admission of certain items relating to. the settlement of Thomas Anderson’s estate. Upon Mr. Anderson’s death in 1977, a dispute between Mrs. Tucker and the administratrix of Mr. Anderson’s estate arose as to ownership of certain personal property in the Walnut Street home, given that Mr. [166]*166Anderson had lived there for a period of time. In an attempt to settle the dispute, plaintiff William Tucker, Jr., on behalf of his mother, authored a document entitled “Negotiated Agreement between Dorcas T. Tucker, et al. and Elizabeth S. Boyd, Executrix of the Estate of Thomas H.

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Bluebook (online)
523 S.E.2d 139, 136 N.C. App. 162, 1999 N.C. App. LEXIS 1310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucker-v-westlake-ncctapp-1999.