An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1030


Filed: 17 August 2004


                            Moore County           &n bsp;                 No. 02 CVS 0672

    Appeal by caveators-appellants from an order granting summary judgment in favor of propounder entered 27 March 2003 by Judge Michael Helms in Moore County Superior Court. Heard in the Court of Appeals 27 April 2004.

    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.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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