Betts v. Parrish

WEBB, Judge. We do not believe the will of Mr. Sanderford is ambiguous. Item Four provides that in the event his wife and mother should both predecease him, his estate would go to the plaintiffs. This contingency did not happen. It may be that the testator wanted the plaintiffs to have a remainder interest in his house and lot under the contingency that occurred, but he did not say so in his will. We are required to discern the intention of the testator from the plain language of the will. According to this language, the plaintiffs do not take any interest in the house and lot. The canons of construction which the appellees suggest we should follow, such as a will should be construed as to avoid intestacy, a change in language from paragraph to paragraph should be given some significance, and the intention of the testator must be determined from reading the whole will, have no application. These canons of construction are used when a will is ambiguous. In this case, we hold the will is not ambiguous. The testator and his wife died without issue. The remainder interest in the testator’s real property passes to his mother, Ruby Wilson Ellis. See G.S. 31-42(c)(l)b and G.S. 29-15(3). We reverse and remand for a judgment consistent with this opinion. Reversed and remanded. Judge Braswell concurs. Judge Whichard dissents.