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Keywords

statuteappealtrialwillappellant

Related Cases

Colombo v. Stevenson, 150 N.C.App. 163, 563 S.E.2d 591

Facts

Hazel Piland Stevenson died on January 24, 2000, and was predeceased by her only son, George M. Stevenson, Jr., who died on November 29, 1999. The will included specific bequests to her son and grandson, but the trial court found that the anti-lapse statute applied, allowing George Jr.'s share to pass to George III. The appellants, who were other devisees, contested this ruling, arguing that the will's language indicated the testatrix's intent for any lapsed devises to become part of her residuary estate.

The testatrix died on 24 January 2000 and was predeceased by her only son, George Jr., who died on 29 November 1999.

Issue

Did the trial court err in applying the anti-lapse statute to the legacies and devises granted to George M. Stevenson, Jr. under the will of Hazel Piland Stevenson?

The sole issue with this appeal is whether the trial court erred in determining that N.C. Gen.Stat. § 31-42 (anti-lapse statute) applied to the legacies and devises granted to George Jr. under the Will, thereby allowing George Jr.'s issue, George III, to take in his place.

Rule

Unless the will indicates a contrary intent, if a devisee predeceases the testator, the issue of the predeceased devisee shall take in place of the deceased devisee according to N.C. Gen.Stat. § 31-42.

Unless the will indicates a contrary intent, if a devisee predeceases the testator, whether before or after the execution of the will, and if the devisee is a grandparent of or a descendant of a grandparent of the testator, then the issue of the predeceased devisee shall take in place of the deceased devisee.

Analysis

The Court of Appeals analyzed the language of the will, particularly Article V, which stated that the residuary estate included 'all lapsed legacies and devises, or other gifts made by this will which fail for any reason.' The court concluded that this language demonstrated the testatrix's intent for lapsed devises to become part of the residuary estate, thereby precluding the application of the anti-lapse statute. The court emphasized that the testatrix did not express an intent to substitute George III for George Jr. in the event of a lapse.

Accordingly, we conclude that, in Article V of her Will, the testatrix used sufficiently clear language to express her intent that the anti-lapse statute not apply to the legacies and devises which lapsed or failed for any reason.

Conclusion

The Court of Appeals reversed the trial court's decision and remanded the case, concluding that the anti-lapse statute did not apply to the legacies and devises in question.

The judgment of the trial court is reversed and the case is remanded for proceedings consistent with this opinion.

Who won?

The appellants, Hazel S. Branch, Howell W. Branch, Betsy Branch Lewis, and Wesley Stevenson Branch, prevailed in the case because the appellate court found that the testatrix's intent, as expressed in the will, did not support the application of the anti-lapse statute.

Appellants maintain that the language used in Article V of the Will clearly indicates the testatrix's intention that any legacy or devise which lapsed was to become a part of her residuary estate; therefore, the trial court erred in concluding the anti-lapse statute applied to the legacies and devises granted to George Jr.

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