Price v. Price , 11 N.C. App. 657 ( 1971 )

182 S.E.2d 217 (1971) 11 N.C. App. 657

Ralph Clay PRICE and First Citizens Bank and Trust Company, as Trustees of "Trust One" under the Last Will and Testament of Ethel Clay Price, deceased,
v.
Ralph Clay PRICE, individually et al.

No. 7118SC257.

Court of Appeals of North Carolina.

July 14, 1971.

Joseph B. Cheshire, Jr., Harris, Poe, Cheshire & Leager, Raleigh, for Ralph Clay Price and First-Citizens Bank and Trust Co., as trustees, plaintiff appellees.

Adams, Kleemeier, Hagan, Hannah & Fouts by John A. Kleemeier, Jr., Greensboro, for Ralph Clay Price, Individually, and Ralph Clay Price, as Executor of Ralph Clay Price, Jr., defendant appellees.

Womble, Carlyle, Sandridge & Rice by Charles F. Vance, Jr., and Kenneth A. Moser, Winston-Salem, and Percy L. Wall, Greensboro, for Louise Garner Price Smith and Julian Price, II, defendant appellees.

Harry J. O'Connor, Jr., Perry N. Walker, Richard L. Wharton, Thomas E. Wagg, III, and Donald K. Speckhard, Greensboro, for defendant appellants.

HEDRICK, Judge.

It is an elementary rule of construction that the intention of the testator or testatrix is the guiding principle to be used in the interpretation of wills, and such intention shall prevail where not contrary to law or public policy. Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970); Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960). This intent is to be gathered from a consideration of the will from its four corners. McWhirter v. Downs, 8 N.C.App. 50, 173 S.E.2d 587 (1970); McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857 (1965), and cases cited therein. However, where the intent of the testator is clearly expressed in plain and unambiguous language there is no need to resort to the general rules of construction for an interpretation. Rather, the will is to be given effect according to its obvious intent. Branch Banking & Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334 (1953); Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17 (1945).

In the instant case the testatrix, in the questioned portion of her will, expressed the intent that her son, Ralph C. Price, Sr., was to receive the income from Trust One. She then expressed the intent that the children of Ralph C. Price, Sr., were each to receive up to twenty percent of the income upon reaching the age of 21, with the proviso that under no circumstances was Ralph C. Price, Sr., ever to receive less than twenty percent of the income. The testatrix then by clear and unambiguous language made her intention known that "[a]ll of the remaining net income from the aforesaid one share of this trust not so paid to the children of my son, Ralph C. Price [Sr.], from and after they and each of them have attained the age of twenty-one (21) years, shall be paid, in as nearly equal monthly installments as possible, to my son, Ralph C. Price [Sr.], so long as he shall live."

Ralph C. Price, Jr., died after having reached the age of 21 and after he had been receiving income under the provisions of the trust. His death defeats the twenty percent share he had been receiving. Hence, this share falls within the clear language of the testatrix as income "not so paid" and as such is to be paid to Ralph C. Price, Sr. The judgment of the Superior Court is affirmed.

Affirmed.

BROCK, J., concurs.

MORRIS, J., dissents.