Tracy v. Herring

PARKER, Judge. At the time of his death in 1969, Henry L. Herring owned an undivided one-half interest in the 192.75-acre tract and the 66-acre tract at issue here, having conveyed the other one-half undivided interest to his son Henry B. Herring by deed on 12 November 1965. Ozora Creech Herring, who died five years after her husband in 1974, specifically devised to Henry B. Herring all of her interest and estate in the same two tracts. She acquired title to that property, if at all, from her husband by devise. Thus, whether Henry B. Herring is the sole owner of the property depends upon an interpretation of the will of Henry L. Herring. The guiding principle in the interpretation of wills is that the intent of the testator, as determined from the four corners of the instrument, should govern. Kale v. Forrest, 278 N.C. 1, 178 S.E. 2d 622 (1971); Efird v. Efird, 234 N.C. 607, 68 S.E. 2d 279 [377] (1951). If the provisions of the will are ambiguous, the court should consider the circumstances surrounding the testator at the time of execution as an aid to determining that intent. Moore v. Langston, 251 N.C. 439, 111 S.E. 2d 627 (1959). In the present case the court viewed the wills of Henry L. Herring and Ozora Creech Herring together and from the “circumstances and conditions surrounding the testators” found that Henry B. Herring acquired a one-half undivided interest in the two tracts by virtue of those wills. If that finding is supported by competent evidence in the record, it is binding on this appeal. Blackwell v. Butts, 278 N.C. 615, 180 S.E. 2d 835 (1971); Knutton v. Cofield, 273 N.C. 335, 160 S.E. 2d 29 (1968). We hold that there was ample competent evidence to support the court’s ultimate finding. Petitioner contends that under Item X of the will of Henry L. Herring, by which the testator devised a one-half undivided interest in “[a]ll the rest and residue of my estate” to his wife, Ozora Herring acquired a one-fourth undivided interest in 192.75-acre tract and the 66-acre tract and that under Item II she acquired only such additional interest in those tracts as would be required in value when added to the other property passing to her under the will, to equal one-half of the testator’s adjusted gross estate. We agree with the trial judge that the will of Henry L. Herring does not compel the conclusion that the testator intended such a result. Under Item II of his will, Henry L. Herring devised and bequeathed to his wife “such portion, or share, of my estate as shall, when added to the items of property specified in Paragraphs (1), (2) and (3) following next below, result in a total equal to one-half of my adjusted gross estate [as that term is used in the United States Internal Revenue Code].” The property specified in Paragraphs (1), (2) and (3) to which the testator referred included the amount of insurantproceeds payable on the testator’s death, the value of all property held jointly with his wife, and the value of all property determined to be vested in his wife under the residuary clause of the will. This language, viewed out of context, suggests that the testator intended to limit the total amount of property passing to his wife to one-half [378] of the value of his adjusted gross estate as determined for federal estate tax purposes. Immediately following that provision, however, the testator directs that “[property included in that portion of this Item that precedes Paragraphs (1), (2) and (3) above, shall include” (emphasis added) certain specified interests in described tracts of land, including a one-half undivided interest in the 192.75-acre tract and the 66-acre tract at issue. The estate tax return filed on behalf of the estate of Henry L. Herring discloses that if the value of the property passing to Ozora Creech Herring under Paragraphs (1), (2) and (3) of Item II is added to the value of the specified interests in the tracts which the testator directs shall be included in the portion of Item II preceding Paragraphs (1), (2) and (3), the total is greater than one-half the value of the testator’s adjusted gross estate. Thus, the apparently limiting language of the first part of Item II conflicts directly with the clearly mandatory language of the latter part of Item II. The rule is well established that apparently inconsistent clauses in a will should be harmonized and that effect should be given to each phrase used by the testator. Schaeffer v. Haseltine, 228 N.C. 484, 46 S.E. 2d 463 (1948); Williams v. Rand, 223 N.C. 734, 28 S.E. 2d 247 (1943). Applying this rule, we conclude that the logical interpretation of the will is that the testator’s primary intent, as expressed in the latter part of Item II, was that the described interests in the tracts mentioned therein should in all events pass to his wife. His secondary intent, as expressed in the first part of Item II, was to take full advantage of the maximum federal estate tax marital deduction available to him at the time. Construed in this manner, Item II directed that Ozora Creech Herring receive the items of property mentioned in Paragraphs (1), (2) and (3) as well as the specified interests in the several tracts (including the one-half undivided interest in the 192.75-acre tract and the 66-acre tract). If the value of all of those items of property did not equal one-half of the testator’s adjusted gross estate, then Ozora Creech Herring was to receive such additional share as would equal that amount. [379] To the extent that the will of Henry L. Herring was ambiguous because of these conflicting provisions in Item II, it was appropriate for the trial judge to read that will in conjunction with the will of Ozora Herring. See Smith v. Creech, 186 N.C. 187, 119 S.E. 3 (1923). The wills of husband and wife were both executed on 12 November 1965 in the presence of the same two witnesses. The husband’s will specifically referred to the disputed tracts as “including the premises whereon I formerly resided and which are now occupied by my son, Henry B. Herring and his family.” (Emphasis added). In her will Ozora Herring directed that in the event her husband predeceased her, their son Henry B. Herring was to receive all of her interest in the 192.75-acre tract and the 66-acre tract. The deed by which Henry B. Herring acquired title to the undisputed one-half undivided interest in the two tracts was also executed on the same day as execution of his parents’ wills. The contemporaneous execution of the deed to Henry B. Herring and the will of Ozora Herring are unquestionably circumstances which surrounded Henry L. Herring at the time he executed his own will, and the contents of these documents support the inference that his broad testamentary plan was to devise the tracts at issue to his wife in the knowledge that upon her death sole title to the property would vest in his son. Because of our conclusion that there was ample competent evidence to support the trial court’s ultimate finding, we do not consider petitioner’s assignments of error directed to the admission of certain testimony at trial. Even if it be conceded that certain evidence was erroneously admitted, there is nothing upon this record to show that the ultimate finding of fact was influenced thereby. The order appealed from adjudging Henry B. Herring the sole owner of the First and Second Tracts described in the petition is Affirmed. Chief Judge Morris and Judge Wells concur.