residuary clause in North Carolina

2022We 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).

2022We 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).

2006Betts v. Parrish, 312 N.C. 47, 50 , 320 S.E.2d 662, 664 (1984). *413 Contrary to plaintiffs assertion, North Carolina courts have found a partial intestacy when a residuary clause is expressly made . subject to an unfulfilled condition precedent.

2006Betts v. Parrish, 312 N.C. 47, 50 , 320 S.E.2d 662, 664 (1984). *413 Contrary to plaintiffs assertion, North Carolina courts have found a partial intestacy when a residuary clause is expressly made . subject to an unfulfilled condition precedent.

2022App. 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.

2022App. 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.

2013Given this intent, the reference to “all such tangible personal property” in subsection B(l) is more aptly translated “all such property.” See Wing v. Wachovia Bank & Trust Co., N. A., 301 N.C. 456, 464 , 272 S.E.2d 90, 96 (1980) (“When the language following an introductory phrase which purports to dispose of all of testator’s property can be interpreted to result in complete disposition or partial intestacy, the introductory statement, pointing to a complete disposition, ought to be considered, and that sense adopted which will result in a disposition of the whole estate.” (quotation marks a

2013Given this intent, the reference to “all such tangible personal property” in subsection B(l) is more aptly translated “all such property.” See Wing v. Wachovia Bank & Trust Co., N. A., 301 N.C. 456, 464 , 272 S.E.2d 90, 96 (1980) (“When the language following an introductory phrase which purports to dispose of all of testator’s property can be interpreted to result in complete disposition or partial intestacy, the introductory statement, pointing to a complete disposition, ought to be considered, and that sense adopted which will result in a disposition of the whole estate.” (quotation marks a

2013Furthermore, “the presumption against intestacy is strengthened by the presence of a residuary clause in a will.” Id. at 732 , 365 S.E.2d at 614 ; see also Gordon, 190 N.C. at 150 , 129 S.E. at 189 (“In dealing with the residuary clause of a will which is ambiguous, it is required, by the general rale of construction, that a liberal, rather than a restricted, interpretation be placed upon its terms; for a partial intestacy may thereby be prevented, which, it is reasonable to suppose, the testator did not contemplate.”).

2013Furthermore, “the presumption against intestacy is strengthened by the presence of a residuary clause in a will.” Id. at 732 , 365 S.E.2d at 614 ; see also Gordon, 190 N.C. at 150 , 129 S.E. at 189 (“In dealing with the residuary clause of a will which is ambiguous, it is required, by the general rale of construction, that a liberal, rather than a restricted, interpretation be placed upon its terms; for a partial intestacy may thereby be prevented, which, it is reasonable to suppose, the testator did not contemplate.”).

1984"So where it is clear from the residuary clause itself or other parts of the will, that the testator had in fact a contrary intention, namely, that the residue should not be general, and that things given away ... should not fall into the residue," Holton v. Jones, 133 N.C. 399, 406 , 45 S.E. 765, 768 (1903) (quoting Sorrey v. Bright, 21 N.C. (1 Dev. & Bat Eq.) 114, 116 (1835)); see generally, Annot., 10 A.L.R. 1522 (1921), subsection (c)(1)a of G.S. 31-42 does not apply.

1984"So where it is clear from the residuary clause itself or other parts of the will, that the testator had in fact a contrary intention, namely, that the residue should not be general, and that things given away ... should not fall into the residue," Holton v. Jones, 133 N.C. 399, 406 , 45 S.E. 765, 768 (1903) (quoting Sorrey v. Bright, 21 N.C. (1 Dev. & Bat Eq.) 114, 116 (1835)); see generally, Annot., 10 A.L.R. 1522 (1921), subsection (c)(1)a of G.S. 31-42 does not apply.

2010See Ford v. McBrayer, 171 N.C. 420 , 88 S.E. 736 (1916) (A "residuary clause . . . disposes of all other property of the testator."); Hollowell v. Hollowell, 18 N.C.App. 279 , 196 S.E.2d 820 (1973) (property devised in codicil subject to residuary clause of effective will).

2010See Ford v. McBrayer, 171 N.C. 420 , 88 S.E. 736 (1916) (A "residuary clause . . . disposes of all other property of the testator."); Hollowell v. Hollowell, 18 N.C.App. 279 , 196 S.E.2d 820 (1973) (property devised in codicil subject to residuary clause of effective will).

2002In support of their contention, appellees cite Blevins v. Moran, 12 S.W.3d 698 (Ky. Ct. App. 2000), in which the Kentucky Court of Appeals held that a will’s residuary clause which included the phrase “[a]ll the rest, residue and remainder of my estate... including legacies and devises, if any, which may fail for any reason” did not, by itself, establish a testator’s intent to avoid operation of its anti-lapse statute.

2002However, the Court reached its conclusion based on its finding that the language used by the testator was ambiguous and its determination that the Kentucky Anti-Lapse Statute carried with it a “strong presumption against lapse.” Id. at 703 (emphasis added).

2002See Estate of Salisbury, 143 Cal. Rptr. 81 (Cal. App. 1978) (finding language stating that “the residue of my estate, real and personal, wheresoever situate, including all failed and lapsed gifts” was a sufficiently clear expression of testatrix’s intent to render that state’s anti-lapse statute inapplicable); In re Neydorff 184 N.Y.S. 551 (N.Y. 1920) (holding that where testator granted the residue to specified person, “including lapsed legacies,” the legacies to testator’s predeceased brother and sister did not fall within the state’s anti-lapse statute); In re Phelps’ Estate, 126 N.W. 328 (

1999Stat. § 31-43 , this Court has stated: “In North Carolina and a minority of other states, a power of appointment upon which no restrictions are imposed is exercised by a residuary clause.” In the Matter of: First Citizens Bank & Trust Co. v. Fleming, 77 N.C.

1999App. 568, 570 , 335 S.E.2d 515, 517 (1985).

1998In their briefs, appellants argue that courts in this State “have inherent authority over the property of infants and will exercise this jurisdiction whenever necessary to preserve and protect children’s estates and interests.” Sternberger Foundation v. Tannenbaum, 273 N.C. 658, 674 , 161 S.E.2d 116, 128 (1968) (where our Supreme Court reviewed a judgment approving a contract of settlement, which altered the express provisions of the residuary clause in the testator’s will).

1998In their briefs, appellants argue that courts in this State “have inherent authority over the property of infants and will exercise this jurisdiction whenever necessary to preserve and protect children’s estates and interests.” Sternberger Foundation v. Tannenbaum, 273 N.C. 658, 674 , 161 S.E.2d 116, 128 (1968) (where our Supreme Court reviewed a judgment approving a contract of settlement, which altered the express provisions of the residuary clause in the testator’s will).

1997See Taylor v. Sanderson, 116 N.E.2d 269, 271 (Mass. 1953).

1985Misenheimer (Emphases added.) As this Court stated in Howell v. Mehegan, 174 N.C. 64, 67 , 93 S.E. 438, 440 (1917), “no contrary intent appearing [in the will], a void or lapsed legacy or devise passes under a general residuary clause . . . .” Isam Misenheimer did not indicate any intent that a lapsed share would pass otherwise than through the will’s residuary clause.

1985Misenheimer (Emphases added.) As this Court stated in Howell v. Mehegan, 174 N.C. 64, 67 , 93 S.E. 438, 440 (1917), “no contrary intent appearing [in the will], a void or lapsed legacy or devise passes under a general residuary clause . . . .” Isam Misenheimer did not indicate any intent that a lapsed share would pass otherwise than through the will’s residuary clause.