Britt v. Upchurch

396 S.E.2d 318 (1990)

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Nature of the Case

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Facts

Walter, the father of P, executed his will. Walter was married to Ada, his second wife, who was the mother of Upchurch (D). Article IV provided: 'I give, devise and bequeath unto my said wife my residence at 2615 Cooleeme (sic) Street, Raleigh, North Carolina, for the term of her natural life. I give and devise the remainder interest in said property to my daughter, Blanche Louise Hartman Britt.' The residuary clause of the will provided: 'All of the remainder and residue of my property, I give, devise, and bequeath to my wife, Ada Cassie Hartman in fee simple. If my wife shall predecease me, I give, devise and bequeath said residue to my daughter Blanche Hartman Britt.' Walter's house was on lot 36 and on tax records as 2615 Cooleemee Street. When Walter purchased lot 36, his mother purchased lot 37, a vacant lot which is shown on the tax records as 2613 Cooleemee Street. Walter's mother conveyed lot 37 to him by deed in 1956. On the execution of the will and at the time of his death, Walter owned lots 36 and 37. Walter died on 24 February 1983, and Ada died on 5 April 1988. Ada's will provided in Article III: 'I give and bequeath to my daughter, Yvonne G. Upchurch, all my personal and real property.' D attempted to sell lot 37, claiming title to lot 37 under her mother's will, contending that it passed to her mother under the residuary clause of Walter's will. P sued to quiet title to lot 37. The trial judge granted P's motion to exclude evidence from the attorney who drafted Walter's will. D moved for summary judgment. Lots 36 and 37 were listed separately in the tax records. Lot 36 as a vacant lot identified as 2613 Cooleemee Street and lot 37 as a house and lot identified as 2615 Cooleemee Street. The trial judge granted P's motion for summary judgment, declaring her to be the owner of lots 36 and 37. D appealed, and the court held that the description of the property in the will, 'my residence at 2615 Cooleemee Street,' created a latent ambiguity and that extrinsic evidence, including an affidavit signed by the attorney, was admissible to show Walter's intent when he executed the will. It reversed, and P appealed.