IN RE: WILL OF DEWEY IVEY
Moore County &n
bsp;
No. 02 CVS 0672
Cunningham, Dedmond, Petersen & Smith, LLP by Bruce T.
Cunningham, for caveators-appellants.
Gill & Tobias, LLP, by Douglas R. Gill, for propounder-
appellee.
STEELMAN, Judge.
On 20 May 1999 Dewey Ivey executed a document titled “Last
Will and Testament of Dewey Ivey.” Mr. Ivey died 2 March 2000, and
on 7 March 2000 Paula Fields (propounder) applied to the Moore
County Clerk of Court for Letters Testamentary. On 16 May 2002
Sandra D. Smith, Geraldine Thomas and Pamela S. Ivey (caveators),
natural daughters of Mr. Ivey, filed a caveat proceeding seeking a
declaration that the purported will was invalid. The caveat
proceeding did not challenge the capacity of Mr. Ivey to make a
will, but rather alleged as its sole basis that the will was
“invalid because it does not direct a final distribution of the
estate.” On 4 February 2003 propounder filed a motion for summary
judgment. Caveators also filed a motion for summary judgment on 21February 2003. No affidavits or other materials were submitted in
support of or in opposition to the motions for summary judgment.
On 27 March 2003 Judge Helms granted summary judgment in favor of
propounder. From this judgment caveators appeal.
In their first assignment of error, caveators contend the
trial court committed reversible error by making an inquiry that
was “irrelevant and improper” for a summary judgment proceeding.
We disagree.
“Summary judgment is properly granted only 'if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.'” Econo-Travel Motor Hotel Corp. v.
Taylor, 301 N.C. 200, 202, 271 S.E.2d 54, 57 (1980)(citations
omitted). On appeal, our standard of review is (1) whether there
is a genuine issue of material fact and (2) whether the movant is
entitled to judgment as a matter of law. NationsBank v. Parker, 140
N.C. App. 106, 108-09, 535 S.E.2d 597, 599 (2000)(citation
omitted). “The evidence presented is viewed in the light most
favorable to the non-movant.” Id. at 109, 535 S.E.2d at 599.
The court is not authorized by Rule 56 to
decide an issue of fact. It is authorized to
determine whether a genuine issue of fact
exists. The purpose of summary judgment is to
eliminate formal trials where only questions
of law are involved by permitting penetration
of an unfounded claim or defense in advance of
trial and allowing summary disposition for
either party when a fatal weakness in the
claim or defense is exposed.
Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419,
422 (1979)(citation omitted). In analyzing the trial court's order
granting summary judgment, we review the relevant evidence and
determine whether there exists any disputed issue of material fact.
The motivation or biases of the trial court thus have no bearing on
our review. Assuming arguendo that the trial court made an
inappropriate inquiry in the hearing, and that it relied upon
irrelevant evidence in making its decision, this error would have
no impact on our review, and cannot be found to prejudice the
caveators. This assignment of error is thus without merit.
In their second assignment of error caveators contend that the
trial court erred in granting summary judgment in favor of
propounder because the purported will was not executed with the
required testamentary intent. We disagree.
At the hearing of this matter, counsel for caveators
represented to the court that: “There are cross motions for summary
judgment in that everyone agrees that the issues can be resolved on
the face of the document.” This is confirmed by the fact that
neither side submitted affidavits in support of or in opposition to
the motions for summary judgment. Where the sole issue before the
court is the construction of language in the will, which can be
done upon the face of the document, we hold that summary judgment
can be properly considered and entered. Such a situation fits
completely within the concept of summary judgment in that there are
no genuine issues of material fact and one party is entitled to
judgment as a matter of law. See N.C.R. Civ. P. Rule 56(c)(2004). Caveators contend that the provisions of Articles III & IV of
Mr. Ivey's will did not direct a final distribution of the estate.
Article III of the document, titled Bequest of Tangible Personal
Property, reads:
I give and bequeath my personal effects,
automobiles and all of my other tangible
personal property to my step-granddaughter,
Paula Locklear Fields, however, she has
additional directions from me as to the final
distribution of such property to my three
daughters and herself. It is my intent to
produce a written directive as to such final
distribution, however, because of my desire to
execute my Will before undergoing surgical
procedure, I do not have sufficient time to
complete that task. (emphasis added).
The disputed language in Article IV (the residuary clause) of the
document is nearly identical to that of Article III. Caveators'
only argument under this assignment of error is that the phrase
“...I do not have sufficient time to complete that task”
establishes that the Mr. Ivey lacked testamentary intent when
executing the purported will, and thus no valid will was created.
Caveators' position would result in no property passing under the
will and the consequent total intestacy of Mr. Ivey's estate.
The animus testandi required is more than an
intent to execute a will. It is the intent to
presently devise by the paper writing being
then executed and that such writing shall have
the full force and effect of a will. It is
not sufficient that the writer express a
present intent to thereafter make a will. It
must appear from the language used that it was
the writer's intent that the paper itself
should operate as a disposition of her
property to take effect after death.
In re Taylor's Will, 220 N.C. 524, 525, 17 S.E.2d 654, 655
(1941)(citations omitted). The intention of the testator is the polar star which shall
guide the courts in the interpretation of wills. Clark v. Connor,
253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960).
Where there is a will there is a presumption
against partial intestacy, Seawell v. Seawell,
233 N.C. 735; Van Winkle v. Berger, 228 N.C.
473, 46 S.E.2d 305; Holmes v. York, 203 N.C.
709, 166 S.E. 889, and the courts in
construing a will do not search for a meaning
which will nullify it in whole or in part,
Johnson v. Salsbury, 232 N.C. 432, 61 S.E.2d
327, but adopt that construction which will
uphold the will in all its parts if such
course is consistent with established rules of
law and the intention of the testator.
Johnson v. Salsbury, supra; Ferguson v.
Ferguson, 225 N.C. 375, 35 S.E.2d 231.
Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 460-461, 67
S.E.2d 651, 656 (1951). In construing a will, the courts are not
to consider isolated clauses by themselves, but are to consider the
will as a whole. Ordinary words are to be given their usual and
ordinary meaning. Clark, 253 N.C. at 521, 117 S.E.2d at 468.
We apply these principles of construction to Mr. Ivey's will.
It is clear that Mr. Ivey intended to make a will and to dispose of
his property. The will commences:
I, Dewey Ivey, of Moore County, North
Carolina, do make publish and declare this to
be my last will and I hereby revoke all wills
and codicils heretofore made by me. As of the
date of this will, I declare that I am
widowed, my wife, Flora Jane Ivey having
predeceased me, and I have three daughters,
Sandra D. Smith, Geraldine Thomas and Pamela
Sue Ivey.
Both Articles III and IV devise and bequeath testator's property to
Paula Locklear Fields. The testator then references that he has
given certain instructions to Ms. Fields. Mr. Ivey proceeds toexpress his intent to at a later time produce “a written directive
as to such final disposition, however, because of my desire to
execute my will before undergoing a surgical procedure, I do not
have sufficient time to complete the task.”
This language does not, as asserted by caveators, evidence an
intent to make a future disposition of his property. Rather, the
plain meaning of his words is that Mr. Ivey understood that he was
undergoing surgery and thus the immediate need for making a will to
dispose of his property. He felt that he did not have time to make
a detailed written directive, and instead chose to devise and
bequeath his property to Paula Fields and to trust her to follow
his wishes. If caveators' position were adopted then the drafting
and execution of the will by Mr. Ivey would have been a completely
nugatory act.
Based upon the plain language of the will, and applying the
presumption against intestacy, we hold that the trial court
properly granted summary judgment in favor of the propounder and
properly dismissed the caveat proceeding. This assignment of error
is without merit.
AFFIRMED.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***