Parks v. Johnson

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-129
No. COA21-51
Filed 1 March 2022
New Hanover County, No. 19 CVS 4192
ANDREA PARKS, JUSTIN MAGESTRO, DION MAGESTRO, and LEAH
MAGESTRO, Plaintiffs,
v.
PEGGY L. JOHNSON and LEAH MAGESTRO, in her capacity as Administrator
CTA of the Estate of Frank Nino Magestro, Defendants.
Appeal by Plaintiffs from judgment entered 14 July 2020 by Judge J. Stanley
Carmical in New Hanover County Superior Court. Heard in the Court of Appeals 19
October 2021.
McGuire, Wood & Bissette, P.A., by Mary E. Euler & Joseph P. McGuire, for
Plaintiffs-Appellants.
Coastal Legal Counsel, by A. David Ervin, and Graves May, PLLC, by Rick E.
Graves, for Defendant-Appellee Peggy L. Johnson.
INMAN, Judge.
¶1 This appeal arises out of a dispute between a decedent’s siblings and the sister
of his former spouse about who should inherit his estate under his will. Resolving
this question requires us to consider the interplay between the language of the will
and relevant statutory and common law. Applying esoteric principles of
interpretation to these facts leads us to a straightforward conclusion: the testator’s
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2022-NCCOA-129
Opinion of the Court
express intent must prevail.
¶2 Plaintiffs-Appellants, the decedent’s siblings, argue the trial court erred in
entering judgment on the pleadings in favor of the decedent’s former spouse’s sister
by: (1) concluding our General Statutes require removing all references to the former
spouse in the will; (2) failing to conclude the lapsed gift in one provision of the will
resulted in the decedent’s estate passing by intestacy; and (3) considering matters
outside the pleadings. After careful review, we reverse the judgment of the trial
court.
I. FACTUAL & PROCEDURAL BACKGROUND
¶3 Frank Nino Magestro (“Mr. Magestro”) died in New Hanover County on 2 May
2018. Mr. Magestro was married to Carol Magestro (“Carol”)––the sister of
Defendant-Appellee Peggy L. Johnson (“Ms. Johnson”) and daughter of Elizabeth W.
Chamblee (“Ms. Chamblee”)––from 1982 until they divorced in 2016. They had no
children.
¶4 In March 1983, after celebrating his first wedding anniversary, Mr. Magestro
executed his last will and testament (the “1983 Will”). The 1983 Will provides in
relevant part:
ITEM TWO: I devise and bequeath unto my wife, Carol L.
Magestro, all of my property of every sort, kind, and
description, both real and personal, absolutely and in fee
simple.
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ITEM THREE: In the event my wife, Carol L. Magestro, be
not living at the time of my death, I will, devise, and
bequeath all of my property of every sort, kind, and
description, both real and personal, unto the children of my
marriage with Carol L. Magestro, whether or not born of
adopted after the execution of this will, absolutely and in
fee simple, to be equally divided between them, share and
share alike. In the event either of my said children shall
predecease me, then and in that event such child’s share
shall go to his or her children.
ITEM FOUR: In the event my wife, Carol L. Magestro,
should predecease me and in the event there are no
children born or adopted of my marriage with Carol L.
Magestro, then and in that event, I direct that my estate
be divided into two equal shares to be distributed as
follows:
One (1) share to my mother-in-law, Elizabeth W.
Chamblee, or her descendants per stirpes;
One (1) share to my mother and father, Irene and Andrew
Magestro, or the survivor of them; in the event they both
predecease me, then to their descendants per stirpes.
¶5 Mr. Magestro’s parents, Irene and Andrew Magestro, predeceased Mr.
Magestro. Ms. Chamblee, Mr. Magestro’s former mother-in-law, also predeceased
Mr. Magestro, leaving her two daughters, Carol and Ms. Johnson.
¶6 When he died in 2018, Mr. Magestro was survived by Carol and by his siblings
Andrea Parks, Justin Magestro, Dion Magestro, and Leah Magestro (collectively, “the
Magestros”). The Magestros are Mr. Magestro’s intestate heirs at law––entitled to
inherit from him in the absence of any will. See N.C. Gen. Stat. §§ 29-13, 29-15, and
29-16 (2021).
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¶7 Shortly after his death, the 1983 Will was admitted to probate in New Hanover
County. Leah Magestro was appointed administrator of the estate. In November
2019, after learning that Ms. Johnson claimed an interest in the estate, the Magestros
filed a declaratory judgment action to interpret the 1983 Will. Ms. Johnson
counterclaimed one month later. All parties moved for judgment on the pleadings.
¶8 The Magestros argued to the trial court that the 1983 Will’s direct devise to
Carol in ITEM TWO must be revoked pursuant to N.C. Gen. Stat. § 31-5.4 (2021),
which removes all provisions in a will in favor of a former spouse upon divorce. Then,
because Carol had not predeceased Mr. Magestro and because they had no children,
ITEMS THREE and FOUR of the 1983 Will were inoperative pursuant to N.C. Gen.
Stat. § 31-42(b) (2021), which provides an estate shall pass to intestate heirs where
there is no effective residuary clause. Application of those statutes would result in
the residuary passing by intestacy to the Magestros at the exclusion of Ms. Johnson.
¶9 Ms. Johnson offered a different interpretation of Section 31-5.4, asserting that
the trial court should avoid any intestate distribution under the 1983 Will by
removing all provisions which benefit Carol––the direct devise to Carol and the
residuary’s condition precedent that she predecease Mr. Magestro. With these
provisions revoked, the residuary operates and both Ms. Johnson and the Magestros
would take one-half of Mr. Magestro’s estate.
¶ 10 The trial court heard the parties’ cross motions for judgment on the pleadings
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Opinion of the Court
and entered an order on 14 July 2020 in favor of Ms. Johnson. The trial court’s order
concluded in relevant part:
[Section 31-5.4] removes any reference of Carol L.
Magestro under the Will, including revoking the bequest to
Carol L. Magestro set out in ITEM TWO of the Will,
revoking the appointment of Carol L. Magestro as
executrix as set out in ITEM FIVE of the Will, and
removing any condition precedent that appears in ITEM
THREE and FOUR of the Will that Carol L. Magestro
predecease Frank Nino Magestro in order that ITEM
THREE and/or ITEM FOUR become operable.
By removing the condition precedent, the trial court determined one-half of the
residuary of the estate would pass to Ms. Johnson, as the issue of the predeceased
Ms. Chamblee, and one-half would pass to the Magestros, as issues of Mr. Magestro’s
predeceased parents, Irene and Andrew Magestro. The Magestros timely appealed.
II. ANALYSIS
A. The Trial Court Erred in Excising All References to Mr. Magestro’s
Former Spouse in the 1983 Will
¶ 11 No party disputes that the distribution scheme under ITEM TWO in the 1983
Will is revoked pursuant to Section 31-5.4 because it was “in favor” of Mr. Magestro’s
former spouse, Carol. However, the Magestros assert that by removing all provisions
in the 1983 Will referencing Carol, the trial court revoked provisions beyond the
statute’s scope and undermined Mr. Magestro’s intent. We agree.
¶ 12 We review a trial court’s order of a motion for judgment on the pleadings de
novo. Carpenter v. Carpenter, 189 N.C. App. 755, 757, 659 S.E.2d 762, 764 (2008).
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Judgment on the pleadings is only appropriate “when all the material allegations of
fact are admitted in the pleadings and only questions of law remain.” Groves v. Cmty.
Hous. Corp. of Haywood Cnty., 144 N.C. App. 79, 87, 548 S.E.2d 535, 540 (2001)
(quotation marks and citations omitted). Under de novo review, we consider the
matter anew and substitute our judgment for that of the trial court. In re Estate of
Pope, 192 N.C. App. 321, 331, 666 S.E.2d 140, 148 (2008).
¶ 13 In will interpretation, “the intention of the testator is the polar star which is
to guide,” Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468 (1960), so we must
give effect to the intention of the testator, Misenheimer v. Misenheimer, 312 N.C. 692,
696, 325 S.E.2d 195, 197 (1985).
¶ 14 This matter is governed not only by common law, but also by statute directly
addressing the inheritance rights of former spouses. Section 31-5.4 provides in
pertinent part:
Dissolution of marriage by absolute divorce or annulment
after making a will does not revoke the will of any testator
but, unless otherwise specifically provided in the will, it
revokes all provisions in the will in favor of the testator’s
former spouse or purported former spouse . . . .
§ 31-5.4 (emphasis added). Section 31-5.4 plainly provides that divorce revokes only
those provisions in a will which are “in favor” of a former spouse. We cannot interpret
the statute to nullify all provisions in a will which simply refer to a former spouse.
See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136
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(1990) (“Where the language of a statute is clear and unambiguous, there is no room
for judicial construction and the courts must construe the statute using its plain
meaning.”); Gibboney v. Wachovia Bank, N.A., 174 N.C. App. 834, 837, 622 S.E.2d
162, 165 (2005) (“[Section 31-5.4] . . . clearly mandates that unless the testator
expressly indicates in his will that even if he divorces his spouse she would remain a
beneficiary, the former spouse is denied any testate disposition.”).
¶ 15 Consistent with the plain language of this statute and our objective to give
effect to the testator’s intent, Misenheimer, 312 N.C. at 696, 325 S.E.2d at 197, we
hold the trial court erred by excising all provisions in the 1983 Will which reference
Carol and not solely the provisions that favor her.
¶ 16 Contrary to Ms. Johnson’s assertion, the provision in ITEM FOUR of the 1983
Will, “[i]n the event my wife, Carol L. Magestro, be not living at the time of my death,”
is a condition precedent that cannot be interpreted to favor Carol, because the
residuary is operative only if Carol has died. Necessarily, she would not be alive to
benefit from the estate passing to her relatives.
¶ 17 Citing contractual legal principles, Ms. Johnson also argues the trial court
appropriately excised the condition precedent from the 1983 Will because condition
precedents are “disfavored in the law.” But we construe a provision as a condition
precedent “where the clear and plain language of the agreement dictates such
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construction.” See Handy Sanitary Dist. v. Badin Shores Resort Owners Ass’n, Inc.,
225 N.C. App. 296, 303, 737 S.E.2d 795, 801 (2013) (citation omitted).
B. The Unfulfilled Condition Precedent Means the Residuary Devise Fails
¶ 18 Because Carol survived Mr. Magestro, the condition precedent went unfulfilled
and the residuary devise under ITEM FOUR fails.
¶ 19 Our General Statutes provide:
Unless the will indicates a contrary intent . . . if a devise
otherwise fails, the property shall pass to the residuary
devisee or devisees in proportion to their share of the
residue. . . . If there are no residuary devisees, then the
property shall pass by intestacy.
§ 31-42(b) (emphasis added).
¶ 20 There is a general presumption that “one who makes a will is of disposing mind
and memory and does not intend to die intestate as to any part of his property.” Wing v.
Wachovia Bank & Trust Co., N.A., 301 N.C. 456, 463, 272 S.E. 2d 90, 95 (1980). We will
“construe a residuary clause so as to prevent an intestacy as regards any part of the
testator’s estate, unless there is an apparent intention to the contrary.” Faison v.
Middleton, 171 N.C. 170, 172, 88 S.E. 141, 142 (1916) (emphasis added). In particular,
our Supreme Court has held intestate distribution is appropriate where a residuary
clause is expressly subject to an unfulfilled condition. See, e.g., McKinney v. Mosteller,
321 N.C. 730, 734, 365 S.E.2d 612, 614-15 (1988); Betts v. Parrish, 312 N.C. 47, 57,
320 S.E.2d 662, 668 (1984). Further, “[i]n the absence of a manifest intention to the
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contrary, a will is to be construed in favor of beneficiaries appearing to be the natural or
special objects of the testator’s bounty.” Coffield v. Peele, 246 N.C. 661, 666, 100 S.E.2d
45, 48-49 (1957) (citing Mangum v. Durham Loan & Trust Co., 195 N.C. 469, 142 S.E.
711 (1928)).
¶ 21 Ms. Johnson argues Subsection 31-42(b) is inapplicable because the trial court
correctly concluded Carol’s death was not a condition precedent. If Carol’s death was
not a condition precedent, Ms. Johnson contends, the residuary estate does not lapse
and the devisees under ITEM FOUR, namely Ms. Johnson and the Magestros, inherit
the residuary.
¶ 22 Ms. Johnson cites our decision in McKinney v. Mosteller, 85 N.C. App. 429, 355
S.E.2d 164 (1987), rev’d, 321 N.C. 730, 365 S.E.2d 612 (1988), for the general
proposition that there is a presumption against intestate distribution when a
decedent has written a residuary clause into his or her will. But the Supreme Court
rejected this Court’s analysis on that very issue where a condition precedent caused
a lapsed devise, holding the “condition precedent in [the will] demonstrates a contrary
intention and militates against such a presumption when the condition precedent has
not been met.” McKinney, 321 N.C. at 733, 365 S.E.2d at 614 (emphasis added). Our
Supreme Court further concluded:
[T]he intent of the testator is manifest and unequivocal,
that is, the residue is to pass to the named beneficiaries
under the residuary clause of the will only if testator’s wife
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survives him. She did not. Therefore, the residue passes
to the heirs at law in accordance with the laws of intestacy
as enacted by the legislature.
Id. at 734, 365 S.E.2d at 614-15.
¶ 23 The 1983 Will provides a residuary should Carol predecease Mr. Magestro (and
should he also have no children):
One (1) share to my mother-in-law, Elizabeth W.
Chamblee, or her descendants per stirpes;
One (1) share to my mother and father, Irene and Andrew
Magestro, or the survivor of them; in the event they both
predecease me, then to their descendants per stirpes.
Ms. Johnson and Mr. Magestro’s siblings are the living devisees under the residuary
clause. When the trial court removed the condition precedent in ITEM FOUR, the
residuary devise became effective, leaving Ms. Johnson with one-half of the residuary
estate and Mr. Magestro’s siblings to divide the remaining half of the residuary.
However, as explained above, removing the condition precedent of Carol predeceasing
Mr. Magestro violates our statutes and undermines Mr. Magestro’s intent.
¶ 24 Here, Mr. Magestro “manifest[ly] and unequivocal[ly]” expressed an intention
contrary to distribution under the residuary clause by including a definite condition
precedent in the 1983 Will––that Carol predecease him. See McKinney, 321 N.C. at
734, 365 S.E.2d at 614-15. As written, Mr. Magestro only intended the residuary
devise to operate if Carol did, in fact, predecease him. She did not, and the condition
went unfulfilled.
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¶ 25 Because the gift in equal shares to Mr. Magestro’s “mother-in-law, Elizabeth
W. Chamblee, or her descendants per stirpes” and “my mother and father, Irene and
Andrew Magestro . . . or . . . their descendants per stirpes” fails, and no other
residuary clause exists, Mr. Magestro’s estate passes by intestacy to his siblings. See
§ 31-42(b) (providing that when a devise fails and “there are no residuary devisees,
then the property shall pass by intestacy”). Cf. Betts, 312 N.C. at 57, 320 S.E.2d at
668; Coffield, 246 N.C. at 666, 100 S.E.2d at 48-49.
¶ 26 Ms. Johnson contends our reversal of the trial court “would invalidate
thousands of North Carolina wills wherein a former spouse is still living” and
disinherit countless children of divorced couples. This argument is refuted by our
state intestacy statutes. A divorced couple’s children are neither divested as intestate
heirs nor do they share the estate with another class of relatives; they inherit the
“entire net estate or share” alongside any other children of the decedent. See §§ 29-
13, 29-15, and 29-16.
¶ 27 The Magestros further argue the trial court erred by considering factual
allegations beyond the pleadings in rendering its decision. In light of our holding
that the trial court erred in entering judgment on the pleadings in favor of Ms.
Johnson, we need not address this issue.
III. CONCLUSION
¶ 28 Based on the reasons set forth, we reverse the trial court’s judgment.
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REVERSED.
Chief Judge STROUD and Judge CARPENTER concur.