McWhirter v. Downs , 8 N.C. App. 50 ( 1970 )

173 S.E.2d 587 (1970) 8 N.C. App. 50

Nancy H. McWHIRTER
v.
Kenneth R. DOWNS, Executor of the Estate of W. H. McWhirter, deceased, Nancy Marylan McWhirter; and Geraldine M. McWhirter.

No. 7026SC36.

Court of Appeals of North Carolina.

May 6, 1970.

H. Parks Helms, Clayton, Lane & Helms, Charlotte, for plaintiff-appellant-appellee.

William H. Booe, Charlotte, for defendant appellees-appellants.

GRAHAM, Judge.

Plaintiff is the wife of a nephew of W. H. McWhirter who died on 10 December 1967 in Mecklenburg County. His will, which has been duly filed and probated in Mecklenburg County, provides in Items Eight, Nine and Ten as follows:

"ITEM EIGHT

I will, devise and bequeath to Mary Lee Cory the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS.

ITEM NINE

I will, devise and bequeath to Nancy H. McWhirter the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS.

ITEM TEN

I will, devise and bequeath to my nieces and nephews and to my deceased wife, Nancy H. McWhirter's nieces and nephews with the exception of Mary Lee Cory and Nancy H. McWhirter foregoing named the sum of ONE THOUSAND AND NO/100 ($1,000.00) each."

PLAINTIFF'S APPEAL

Plaintiff's sole assignment of error is to the conclusion of the court that she is not the Nancy H. McWhirter whom the testator intended as the donee under Item Nine of his Last Will and Testament. The trial court made only the following three findings of fact:

"1. The plaintiff, Nancy H. McWhirter, is not a niece nor a nephew of the deceased testator, W. H. McWhirter;

2. The plaintiff is not a niece nor a nephew of Nancy H. McWhirter, the deceased wife of the deceased testator, W. H. McWhirter; and

3. The plaintiff is not the person whom the deceased testator intended as the donee under Item Nine of his Last Will and Testament."

While finding number 3 is not denominated as such, it is obviously a conclusion drawn by the court from the facts. In our opinion it is supported by the first two findings which are not excepted to and are therefore deemed by us to be supported by the evidence. 1 Strong, N.C. Index 2d, Appeal and Error, § 28, and cases therein cited.

It is elementary that the intent of a testator is to be gathered from a consideration of a will from its four corners. McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857, and cases therein cited. Item Ten of the will clearly identifies the Nancy H. McWhirter named in Item Nine as being a member of a particular class— that is, nieces and nephews of the testator or his deceased wife. The court's first two findings to the effect plaintiff is not within that class support the conclusion made that plaintiff is not the Nancy H. McWhirter named in Item Nine as a donee and the further conclusion that plaintiff is not entitled to recover in this action. Plaintiff's assignment of error is overruled.

DEFENDANTS' APPEAL

As a basis for their appeal, defendants contend that the court is without authority to award plaintiff's counsel an attorney's fee. We do not agree. G.S. § 6-21 provides in part as follows: "Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court: * * * (2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; * * *. The words ``costs' as the same appears and is used in this section shall be construed to include reasonable attorneys' fees in such amounts as the court shall in its discretion determine and allow; * * *."

It is our opinion and we so hold that the language quoted above is sufficient to vest in the trial court the discretionary authority to tax reasonable attorney's fees as a part of the costs to be paid by the Executor. No question has been raised regarding the reasonableness of the attorney's fee here involved.

Plaintiff's appeal affirmed.

Defendants' appeal affirmed.

BROCK and BRITT, JJ., concur.