(a) 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. The devisee's issue shall take the deceased devisee's share in the same manner that the issue would take as heirs of the deceased devisee under the intestacy provisions in effect at the time of the testator's death. The provisions of this section apply whether the devise is to an individual, to a class, or is a residuary devise. In the case of the class devise, the issue shall take whatever share the deceased devisee would have taken had the devisee survived the testator; in the event the deceased class member leaves no issue, the devisee's share shall devolve upon the members of the class who survived the testator and the issue of any deceased members taking by substitution.
(b) Unless the will indicates a contrary intent, if the provisions of subsection (a) of this section do not apply to a devise to a devisee who predeceases the testator, or if a devise otherwise fails, the property shall pass to the residuary devisee or devisees in proportion to their share of the residue. If the devise is a residuary devise, it shall augment the shares of the other residuary devisees, including the shares of any substitute takers under subsection (a) of this section. If there are no residuary devisees, then the property shall pass by intestacy.
(c) Renunciation of a devise is as provided for in Chapter 31B of the General Statutes.
(c1) The determination of whether a devisee has predeceased the testator shall be made as provided by Article 24 of Chapter 28A of the General Statutes.
(d) As used in this section, "devisee" means any person entitled to take real or personal property under the provisions of a will. (1844, c. 88, s. 4; R.C., c. 119, s. 7; Code, s. 2142; Rev., s. 3142; 1919, c. 28; C.S., s. 4166; 1951, c. 762, s. 1; 1953, c. 1084; 1965, c. 938, s. 1; 1975, c. 371, s. 3; 1979, c. 525, s. 5; 1987, c. 86, ss. 1, 2; 1989, c. 244; 1999-145, s. 1; 2001-83, s. 1; 2007-132, ss. 3(a), (b).)
§§ 31-42.1 through 31-42.2. Repealed by Session Laws 1965, c. 938, s. 2.
§ 31-43: Repealed by Session Laws 2015-205, s. 3(b), effective August 11, 2015.
Notes of Decisions
BETTS BY AND THROUGH PARKER v. Parrish (1984)
nc · cites it 18×
“Because G.S. 31-42 does not prevent a lapse under subsections (a) or (b), the remainder interest would pass according to the statutory provisions of subsection (c) which provides: (c) Devolution of Void, Revoked, Renounced or Lapsed Devises or Legacies.”
Early v. Bowen (1994)
ncctapp · cites it 16×
“§ 31-42, commonly known as the anti-lapse statute, provides in pertinent part: (a) Unless a contrary intent is indicated by the will, where a devise or legacy of any interest in property is given to a person as an individual or as a member of a class and the person dies survived…”
Bear v. Bear (1969)
ncctapp · cites it 7×
“A determination of the question requires the construction of G.S. 31-42. This statute is entitled “Failure of devises and legacies by lapse or otherwise.”
Tyndall-Taylor v. Tyndall (2003)
ncctapp · cites it 6×
“Had decedent done so, when Richard III predeceased the decedent, Richard IV would have taken the property “as the issue” of Richard III “by virtue of G.S. 31-42.” Id. We are cognizant of the fact that in the present case the decedent died intestate, whereas in Rape the decedent…”
Colombo v. Stevenson (2002)
ncctapp · cites it 6×
“The sole issue with this appeal is *164 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.”
Taylor v. Taylor (1980)
nc · cites it 2×
“Since plaintiff has functionally dissented from her husband’s will, subject only to an essentially ministerial act on the part of the clerk of Orange Superior Court, she has abandoned her right to claim property under the residuary clause of the will she now seeks to challenge.”
In re the Will of Hubner (1992)
ncctapp · cites it 19×
“North Carolina’s Anti-lapse Statute, N.C.G.S. § 31-42, prevents this common law result under certain circumstances.”
Tighe v. Michal (1979)
ncctapp · cites it 2×
“G.S. 31-42(c)(1)(b). Therefore, if the testatrix was not survived by a child, children, any lineal descendant of a deceased child or children, or a parent, then James W.”
Moore v. Stern (1996)
ncctapp · cites it 15×
“The parties agree that pursuant to N.C. Gen. Stat. § 31-42 (a) (1995 Cum. Supp.”
Sedberry v. Johnson (1983)
ncctapp
“1981) and G.S. 31-42(a) (1976)); and that the court thus cor *431 rectly adjudged that the children are the persons entitled to take under the will to the exclusion of defendant.”
— N.C. Gen. Stat. § 31-42(a) — 10 cases
Early v. Bowen (1994)
ncctapp
“§ 31-42, commonly known as the anti-lapse statute, provides in pertinent part: (a) Unless a contrary intent is indicated by the will, where a devise or legacy of any interest in property is given to a person as an individual or as a member of a class and the person dies survived…”
BETTS BY AND THROUGH PARKER v. Parrish (1984)
nc
“Because G.S. 31-42 does not prevent a lapse under subsections (a) or (b), the remainder interest would pass according to the statutory provisions of subsection (c) which provides: (c) Devolution of Void, Revoked, Renounced or Lapsed Devises or Legacies.”
Sedberry v. Johnson (1983)
ncctapp
“1981) and G.S. 31-42(a) (1976)); and that the court thus cor *431 rectly adjudged that the children are the persons entitled to take under the will to the exclusion of defendant.”
Tyndall-Taylor v. Tyndall (2003)
ncctapp
“Had decedent done so, when Richard III predeceased the decedent, Richard IV would have taken the property “as the issue” of Richard III “by virtue of G.S. 31-42.” Id. We are cognizant of the fact that in the present case the decedent died intestate, whereas in Rape the decedent…”
— N.C. Gen. Stat. § 31-42(b) — 8 cases
BETTS BY AND THROUGH PARKER v. Parrish (1984)
nc
“Because G.S. 31-42 does not prevent a lapse under subsections (a) or (b), the remainder interest would pass according to the statutory provisions of subsection (c) which provides: (c) Devolution of Void, Revoked, Renounced or Lapsed Devises or Legacies.”
In re the Will of Hubner (1992)
ncctapp
“North Carolina’s Anti-lapse Statute, N.C.G.S. § 31-42, prevents this common law result under certain circumstances.”
— N.C. Gen. Stat. § 31-42(c) — 4 cases
Taylor v. Taylor (1980)
nc
“Since plaintiff has functionally dissented from her husband’s will, subject only to an essentially ministerial act on the part of the clerk of Orange Superior Court, she has abandoned her right to claim property under the residuary clause of the will she now seeks to challenge.”
Bear v. Bear (1969)
ncctapp
“A determination of the question requires the construction of G.S. 31-42. This statute is entitled “Failure of devises and legacies by lapse or otherwise.”
Moore v. Stern (1996)
ncctapp
“The parties agree that pursuant to N.C. Gen. Stat. § 31-42 (a) (1995 Cum. Supp.”
— N.C. Gen. Stat. § 31-42(c)(1) — 1 case
BETTS BY AND THROUGH PARKER v. Parrish (1984)
nc
“Because G.S. 31-42 does not prevent a lapse under subsections (a) or (b), the remainder interest would pass according to the statutory provisions of subsection (c) which provides: (c) Devolution of Void, Revoked, Renounced or Lapsed Devises or Legacies.”
— N.C. Gen. Stat. § 31-42(c)(1)(b) — 1 case
Tighe v. Michal (1979)
ncctapp
“G.S. 31-42(c)(1)(b). Therefore, if the testatrix was not survived by a child, children, any lineal descendant of a deceased child or children, or a parent, then James W.”
— N.C. Gen. Stat. § 31-42(c)(2) — 4 cases
In re the Will of Hubner (1992)
ncctapp
“North Carolina’s Anti-lapse Statute, N.C.G.S. § 31-42, prevents this common law result under certain circumstances.”
Moore v. Stern (1996)
ncctapp
“The parties agree that pursuant to N.C. Gen. Stat. § 31-42 (a) (1995 Cum. Supp.”
— N.C. Gen. Stat. § 31-42(c)(l) — 2 cases
BETTS BY AND THROUGH PARKER v. Parrish (1984)
nc
“Because G.S. 31-42 does not prevent a lapse under subsections (a) or (b), the remainder interest would pass according to the statutory provisions of subsection (c) which provides: (c) Devolution of Void, Revoked, Renounced or Lapsed Devises or Legacies.”
— N.C. Gen. Stat. § 31-42(c)(l)(a) — 1 case
Tighe v. Michal (1979)
ncctapp
“G.S. 31-42(c)(1)(b). Therefore, if the testatrix was not survived by a child, children, any lineal descendant of a deceased child or children, or a parent, then James W.”
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