Redd v. Taylor

153 S.E.2d 761 (1967) 270 N.C. 14

Warren REDD, Jane Redd and Charles J. Henderson, Co-Executors of the Estate of Bessie Flowe Redd, Deceased, Plaintiffs,
v.
Theodocia TAYLOR, Queens College, Incorporated, a Corporation, Barium Springs Home for Children, Inc., a corporation, Dolphus Orr, Jr., Division of World Missions of the Board of Missions of the Methodist Church, a Corporation, Board of World Missions of the Presbyterian Church in the United States, a Corporation, Jack N. Norwood, One of a class composing all of the next of kin and heirs at law of Bessie Flowe Redd, Deceased, James H. Carson, Jr., Guardian ad litem for any person, persons, firms, or corporations formed or unformed, designated or making any claims to the estate of Bessie Flowe Redd, Deceased, under the name "World Missions", Lloyd F. Baucom, Guardian ad litem of any unknown or unborn heirs at law, or minors, or any unknown person or persons non compos mentis, or imprisoned, or residing outside the State of North Carolina, or otherwise under legal disability, claiming as next of kin and heirs at law of Bessie Flowe Redd, Deceased, Original Defendants, and
Warren Redd and Jane Redd, Additional Defendants.

No. 286.

Supreme Court of North Carolina.

April 12, 1967.

Ray Rankin and Henry E. Fisher, Charlotte, for Jack N. Norwood, defendant appellant.

Lloyd F. Baucom, Charlotte, Guardian ad litem, defendant appellant.

Boyle, Alexander & Carmichael, Charlotte, for Warren Redd and Jane Redd, additional defendant appellants.

Helms, Mulliss, McMillan & Johnston, Charlotte, for Board of World Missions of the Presbyterian Church in the United States, defendant appellee.

Ervin, Horack, Snepp & McCartha, Charlotte, for Queens College, Inc., defendant appellee.

W. R. Pope, Mooresville, for Barium Springs Home for Children, Inc., defendant appellee.

SHARP, Justice.

Appellants Jack N. Norwood, as the representative of the heirs at law of Mrs. Redd, and Lloyd F. Baucom, guardian ad litem for her unknown heirs, contend that both the devise to Warren and Jane Redd and the gift to World Missions are void "for indefiniteness and ambiguity"; that parol evidence is inadmissible to effect identification; and that these purported gifts pass as undevised property to Mrs. Redd's heirs at law. Appellants Warren and Jane Redd contend that no ambiguity exists in the devise to them; that it gave them the right to take any part or all of the farm on Albemarle Road; and that the court erred in admitting evidence which contradicted the plain terms of the will. None of these contentions can be sustained.

Mrs. Redd's gift to "World Missions" and her devise to Warren and Jane Redd of "the part of the farm on Albemarle Road that they want in fee simple" created latent ambiguities, which could be removed by parol testimony.

A latent ambiguity occurs when the words of an instrument are plain and intelligible, but extrinsic facts are necessary to identify the person or thing mentioned therein. A latent ambiguity, therefore, presents a question of identity—a fitting of the description in the will to the person or thing the testator intended. As Pearson, J. (later C.J.), said in President and Directors of the North Carolina Institute, etc. v. Norwood, 45 N.C. 65, 68, "(I)n cases of latent ambiguity, evidence dehors is not only competent, but necessary * * * for how can any instrument identify a person or thing? It can describe, but the identification, the fitting of the description, can only be done by evidence dehors." Accord, McDaniel v. King, 90 N.C. 597; Kincaid v. Lowe, 62 N.C. 42; Note, 35 N.C.L.Rev. 167 (1956); 95 C.J.S. Wills § 636 (1957); see Wachovia Bank and Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246.

In the bequest or devise to World Missions, testatrix was obviously using a proper name and was designating a particular organization as the object of her bounty. Here, the capitalization negates any idea that she was merely stating a purpose to aid world missions, or foreign missions, in general. Bridges v. Pleasants, 39 N.C. 26. When both Division of World Missions of the Board of Missions of the Methodist Church, Inc., and Board of World Missions of the Presbyterian Church in the United States, Inc., claimed to be the designated beneficiary, the executors were confronted with one of the classic examples of a latent ambiguity—the situation in which two "persons allege themselves to be the identical A.B. meant by the testator, or, as is said in the books, as if there be two `Cousin Johns.'" President and Directors of the North Carolina Institute, etc. v. Norwood, supra at 70.

In McLeod v. Jones, 159 N.C. 74, 74 S.E. 733, testator devised one-third of his residuary estate to Home Missions of the Baptist denomination, one-third to Foreign Missions of the Baptist denomination, and one-third to Thomasville Orphanage. On consideration of the facts in evidence, the habits and customs of the testator, his church affiliation, and his direct declarations, the jury found that the intended donees were the Home Mission Board of the Southern Baptist Convention, the Foreign Mission Board of the Southern Baptist Convention, and the trustees of the Thomasville Baptist Orphanage, and the judgment so decreed. In affirming his judgment this court said:

"Under our decision the facts in evidence present an instance of a latent ambiguity, requiring and permitting the reception of extrinsic evidence, not to alter or affect the construction, but to apply the description to the intended donee, as designated by the language appearing in the will. * * * And in such cases and for such purpose authority here and elsewhere is to the effect that the surrounding circumstances as well as the declarations of the testator are relevant to the inquiry and especially where, as in this case, they were made at the time the will was executed." Id. at 76, 74 S. E. at 734.

Accord, Thomas v. Summers, 189 N.C. 74, 126 S.E. 105; Fulwood v. Fulwood, 161 N.C. 601, 77 S.E. 763. Annot., Admissibility of extrinsic evidence to aid interpretation of will, 94 A.L.R. 26, 275. See Thomas v. Lines, 83 N.C. 191, 197. Declarations of intent by a testator, of course, are not admissible to control the construction of his will or to vary, contradict, or add to its terms. Holmes v. York, 203 N.C. 709, 166 S.E. 889; Reynolds v. Safe Deposit & Trust Co. of Baltimore, 201 N.C. 267, 159 S.E. 416; McDaniel v. King, supra; Annot., 94 A.L.R. 26, 272.

The "circumstances attendant" when Mrs. Redd wrote her will (see Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 540, 96 S.E.2d 690, 694)—the evidence with reference to her church affiliation, her loyalty to the Presbyterian faith, and her customs—, and her oral declarations lead to the inescapable conclusion that her intended beneficiary was Presbyterian World Missions. The words of Pearson, J. (later C.J.), in President and Directors of the North Carolina Institute, etc. v. Norwood, supra at 75, are again well applicable to this case: "The rules of law as well as of good sense forbid that the charitable intention of the testator should be defeated because (she) did not (use) the precise name of the corporation, and had fallen into the common practice of calling it by a short name." In Norwood, a bequest to the Deaf and Dumb Institution was held to be a case of latent ambiguity and "the President and Directors of the North Carolina Institute for the education of the Deaf and Dumb" was identified as the taker of the legacy.

In the gift to "World Missions," the latent ambiguity related to the identity of the donee; in the devise to Warren and Jane Redd, it pertains to the identity of the property devised. The dispositive provision is: "They are to have the part of the farm on Albemarle Road that they want in fee simple." It is clear to us that, by the use of this language, Mrs. Redd did not intend to give Warren and Jane Redd the whole of Albemarle Road farm in the event they should declare that they wanted it. She could safely assume that, if by wanting it they could have it, they would want the 108 acres of land adjacent to or just inside the city limits of Charlotte, a property conservatively valued at $198,158.00. Had she intended for them to have the entire farm, she would have said so. The words of the devise deny a gift of the whole; they speak also in the present tense, as of the date Mrs. Redd wrote the codicil. She said, "the part * * * that they want"—not "such part as they may want or choose." Her reference was to land that they then wanted and not land which they might desire after her death. Furthermore, this devise concludes with the words: "The rest of the farm to go with the rest of my estate." (Italics ours.)

Testatrix' intention to give Warren and Jane Redd a certain, definite portion of the farm, the boundaries of which she and they both knew, is plain. This provision is not analogous to the devise of 25 undesignated acres out of a larger tract of 82 acres, which was held void for indefiniteness of description in Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723. The executors' problem here was simply to identify the particular part of the Albemarle Road farm which Warren and Jane Redd had indicated to testatrix, prior to February 2, 1956, that they wanted. Wachovia Bank and Trust Co. v. Dodson, 260 N.C. 22, 131 S.E.2d 875; 4 Strong, N. C. Index, Wills § 28 (1961). The problem is no different from the one created by a devise of "the Linebarger plantation" (Kincaid v. Lowe, supra), "the homestead tracts" (Fulwood v. Fulwood, supra), "My homeplace on McIver Street" (Thomas v. Summers, supra). In Kincaid v. Lowe, supra, 62 N.C. at 42, Battle, J., said: "This is a plain case of latent ambiguity, as to which it is equally plain that it may be removed by parol testimony." The devises in Kincaid, Fulwood, and Thomas, and in the instant case, were of specified tracts of land; the question: Can it be identified and, if so, what land was meant? The description of the property in each of those cases—and in this one—was sufficiently definite to permit its identification by parol evidence, including the declarations of the testator. Thomas v. Summers, supra; Fulwood v. Fulwood, supra; McLeod v. Jones, supra; Annot., 94 A.L.R. at 75; 95 C.J.S. Wills § 637 (1957); 4 Wigmore, Evidence § 2472 (3d Ed., 1940). Parol evidence of testatrix' declarations that the Redds had sought to buy the land they had leased from her since 1951 was sufficient and competent to identify it as the land they wanted when she wrote the codicil. The written lease established its boundaries by metes and bounds.

Judge Brock's findings of fact are all based on competent evidence and support his conclusions of law. In our opinion, the judge correctly construed the will and ascertained the actual intention of testatrix.

The judgment of the court below is, in all respects,

Affirmed.