Welch v. Schmidt

WHICHARD, Judge. Respondent assigns error to the finding that the intent of the testator, as disclosed by Items Four and Seven of the will and Item Seven of the codicil, was to provide for the distribution of his estate if (1) his wife predeceased him, (2) her death occurred within thirty days of his, or (3) he and his wife died in a common accident. He argues that Item Seven would apply only if the testator and his wife had died in a common accident, or if she had died within thirty days of his death; that the testator’s intent was to allow the devise to lapse if neither of those conditions occurred; that neither of those conditions occurred, and the property in question thus passed by intestacy. He argues, alternatively, that the property passed under the residuary clause of Item Seven. We disagree, and accordingly affirm. Where one undertakes to make a will, the presumption is that the instrument disposes of all of testator’s property, not leaving a residue to pass under laws governing intestacy. Poindexter v. Trust Co., supra [258 N.C. 371, 128 S.E. 2d 867]; Little v. Trust Co., 252 N.C. 229, 113 S.E. 2d 689. “Having undertaken to make a will at all, it is not consistent with [88] sound reasoning that the testator would have left his estate dangling.” Coddington v. Stone, 217 N.C. 714, 9 S.E. 2d 420. In re Will of Wilson, 260 N.C. 482, 484, 133 S.E. 2d 189, 191 (1963). The testator here stated that his wife’s death in a common accident, or within thirty days after his death, would have the same effect as if she had predeceased him. Having so provided, it would not be “consistent with sound reasoning” to assume that he intended to leave his estate “dangling” by making no provision for disposition in the event that his wife in fact predeceased him. “To effectuate the intention of the testator the court may transpose or supply words, phrases and clauses when the sense of the devise in question ‘as collected from the context manifestly requires it.’ ” Jernigan v. Lee, 279 N.C. 341, 344-45, 182 S.E. 2d 351, 354 (1971). It is evident from the four corners of the will that the testator intended to devise the property in question to the petitioner. In Item Six of his will he unconditionally devised to her a described portion of his Eastatoe Township property. In the codicil he devised to her his “remaining real estate” in that township “[ijf the death of [his] wife . . . occurred] as set forth in Item Four” of the will. Item Four dealt with circumstances in which his wife was to be deemed to have predeceased him. The foregoing evidences an intent to devise to petitioner, in the event testator’s wife predeceased him, all of his Eastatoe Township property. Respondent contends the court erred in declaring petitioner “the owner in fee simple” of this property, because there was no evidence that the testator held fee simple title. A devise of real estate must be construed to be in fee simple unless the will plainly shows “that the testator intended to convey an estate of less dignity.” G.S. 31-38 (1976). The will does not plainly show such an intent. On the contrary, it plainly indicates an intent to devise in fee simple. Affirmed. Judges Webb and Braswell concur.