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Issue  257  Article  409
Published:  11/1/2019

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Brawley v. Sherrill (18-1043) 9/3/2019
Court of Appeals interprets 'per stirpes'

Chris Burti, Vice President and Senior Legal Counsel

This appeal concerns the application in a will of the Latin term "per stirpes," which the opinion of a divided panel of the Court of Appeals states "has been employed as a term of art in wills and estates for more than a century in America and adopted from English common law." (We note that it has actually been used in opinions in North Carolina predating the Civil War.)

The decedent's executrix in this case sought, and trial court handed down in 2018, a declaratory judgment interpreting the provisions of the testatrix's will which devised the testatrix's entire estate to her two children subject to the limitation that if either child predeceased her, that child's interest would be devised to "my grandchildren, per stirpes."

The pertinent provisions of the will in question provided:

ITEM I: I give devise and bequeath all of my estate and property . . . to my children, Billie Cress Sherrill Brawley and Bobby Ray Sherrill, if they are living at the time of my demise, to be theirs absolutely and in fee simple, share and share alike.

ITEM II: If either of my children shall predecease me, I direct that either his or her share shall go to my grandchildren, per stirpes.

At the time of Testatrix's death, her son, Bobby Ray Sherrill ("Bobby Ray"), predeceased her survived by one child, Defendant-Appellee Bobby Vance Sherrill ("Bobby Vance"). The testatrix's daughter Billie Cress Sherrill Brawley ("Billie Cress") survived her, and she had two living children, Rebecca Brawley ("Rebecca") and Bradley Brawley ("Bradley").

The trial court's judgment determined that the testatrix's intent under Item II was to "create two branches for distribution purposes," one branch going to Billie Cress and the other to Bobby Ray. Consistent with this intent, the trial court concluded that Bobby Ray's one-half share in the estate vested solely in his son Bobby Vance, to the exclusion of the other two grandchildren, Rebecca and Bradley and Rebecca appealed contending that, because the will is clear and unambiguous, the trial court erred in construing the testatrix's intent as to this provision. The Court of Appeals reversed.

The majority deemed the will to be unambiguous, devising the deceased son's share to all of the testatrix's grandchildren. The effect of this interpretation; 1. Places five-sixths of the decedent's estate that had been divided equally into one of two branches and; 2. Totally negates the distinction between the terms "per capita" and "per stirpes".

The majority state the North Carolina interpretive doctrine correctly:

It is an elementary rule in this jurisdiction that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In attempting to determine the testator's intention, the language used, and the sense in which it is used by the testator, is the primary source of information, as it is the expressed intention of the testator which is sought.

Pittman v. Thomas, 307 N.C. 485, 492, 299 S.E.2d 207, 211 (1983) (quotation marks and citations omitted).

The opinion also notes that: "Item I of the will bequeaths Testatrix's estate to Billie Cress and Bobby Ray, 'if they are living at the time of [Testatrix's] demise, to be theirs absolutely and in fee simple, share and share alike.' Neither party disputes that this devise, by its plain language, and consistent with North Carolina law, provides for an equal per capita distribution to Testatrix's children as individuals. See, e.g., Wooten v. Outland, 226 N.C. 245, 248, 37 S.E.2d 682, 684 (1946) ('[W]hen [beneficiaries] take directly under a bequest or devise as individuals and not in a representative capacity, and the testator provides that the division or distribution shall be in equal proportions, they take per capita.')."

The majority concluded (we believe erroneously) that the North Carolina Supreme Court's decision in Wachovia Bank & Trust Co. v. Bryant, 258 N.C. 482 (1963) controls, and compels a reversal of the trial court's interpretation of the will.

The opinion states: "devise at issue in Bryant was as follows: 'to my nephews and nieces, the child or children of any deceased nephew and niece to receive the share the parent would have taken, the said distribution to be per stirpes and not per capita.' Id. at 484, 128 S.E.2d at 761. The appellant contended that the last clause, which included the per stirpes language, operated to modify the class of 'nephews and nieces,' rather than 'the child or children of any deceased nephew and niece,' such that the nephews and nieces, and not their issue, would take per stirpes according to the respective representations of their fathers, that is, the testator's unnamed siblings. Id. The Supreme Court disagreed, holding that the testator had clearly 'recognized the nephews and nieces as the stirpes and not their fathers." Id. at 485, 128 S.E.2d at 761 (emphasis added).

The Court explained:

Stirp or stirps means the root or trunk, a person from whom a branch of a family is descended. The term "per stirpes" denotes the division of an estate by representation, a class taking the share to which the deceased whom they represent would have been entitled had he been living.

We think the last clause in the provision under consideration modifies the one immediately preceding it . . . . The testator's gift was to a class, nephews and nieces. He made them the primary legatees after the life estate of his wife—not because they represented a particular brother of his but because they were his nephews and nieces. Not once did he refer to them as children of his deceased brothers . . . . No suggestion that they were to take according to stock or root immediately followed the designation of the nephews and nieces as beneficiaries. That direction followed the designation of those who would take if a nephew or niece died before the date for distribution.

Id. (citation omitted)."

We believe that the majority's reliance upon Bryant is misplaced as did the dissenting Judge who cites Wachovia Bank & Tr. Co. v. Livengood, 306 N.C. 550 (1982), for the exception that when a will "...contains legal or technical words or phrases, we 'presume[] that [the testatrix] used them in their well-known legal or technical sense unless, in some appropriate way in the instrument, [she] indicates otherwise'." We would suggest that Bryant also qualified the rule where the opinion states: "The general rule, which has been stated and restated innumerable times, is that where the devise or bequest is to a class, such as nephews and nieces, the devisees take share and share alike unless it clearly appears that the testator intended a different division..." Bryant, (cites omitted and emphasis added by the author)

The dissenting opinion argues cogently:

The term per stirpes, fundamentally, describes how a gift to a class is to be distributed among the class members, with each surviving member of the class taking the share that would have passed to any ancestral predecessor that also fell within the class. Wachovia Bank & Tr. Co. v. Bryant, 258 N.C. 482, 485, 128 S.E.2d 758, 761 (1963); see also Walsh v. Friedman, 219 N.C. 151, 161-62, 13 S.E.2d 250, 256 (1941) (defining "per stirpes" as "that method of dividing an intestate estate where a class or group of distributees take the share which their deceased would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals" (emphasis added) (citation and quotation marks omitted)); Black's Law Dictionary (11th ed. 2019) (defining "per stirpes" as "[p]roportionately divided between beneficiaries according to their deceased ancestor's share" (emphasis added)). Quoting with approval an opinion by the South Carolina Supreme Court, our Supreme Court in Walsh explained that the term "per stirpes" " 'as employed in our law relates to the mode of distribution—not who shall take, but the manner in which those shall take who come within the class entitled to take.' " 219 N.C. at 161, 13 S.E.2d at 255-56 (emphasis added) (quoting Irvin v. Brown, 160 S.C. 374, 378, 158 S.E. 733, 734 (1931)).

Testatrix's will instructs that, if either of her children predecease her, her grandchildren shall take per stirpes, i.e., only by representation through their respective deceased parent. This interpretation is consistent with the Restatement Third of Property, which provides:

If, for example, a gift is made to the "grandchildren" or to the "nieces and nephews" of a designated person " per stirpes ," the described class members might stem from different children or different siblings of the designated person. In such case, the words " per stirpes" suggest an initial division of the property into shares at the generation above the generation of the class members, with one share going to the children of each child or of each sibling. In this situation, . . . the words "per stirpes" also cause the share of a deceased class member to be divided by representation among his or her descendants.

Restatement (Third) of Prop. (Wills & Donative Transfers) § 14.2 cmt. h (2011).

The majority asserts that by devising the share of any of her deceased children "to my grandchildren"—rather than "to the child of any deceased child" or other more precise description—the Testatrix indicated her intent for all of her grandchildren to take from the deceased child, with each grandchild's percentage interest calculated according to each grandchild's root or parent. The majority's analysis means that Rebecca and Bradley—whose mother, Billie Cress, is still living—take from Bobby Ray, their deceased uncle. The analysis modifies a per stirpes devise in a manner that has never before been contemplated.

While Testatrix's lack of precise language created a chore for counsel, the trial court, and this Court, that imprecision cannot negate the plain meaning of the term "per stirpes" used to describe the method of distribution among the class members. No one disputes that Rebecca and Bradley are part of the class of grandchildren described in the will and can potentially benefit from the will's devise. But, because Billie Cress, unlike Bobby Ray, was still alive at the time of Testatrix's death, the condition for the manner in which Rebecca and Bradley take from the will did not occur. To put it differently, had Billie Cress predeceased Testatrix instead of Bobby Ray, Bobby Vance would not be able to take from Billie Cress' share because Billie Cress is not the "stock or root" of Bobby Vance.

Accordingly, consistent with the historical administration of the term "per stirpes," Rebecca and Bradley, whose root is Billie Cress and not Bobby Ray, should not be entitled to take of the will's devise to the deceased Bobby Ray, while Bobby Ray's son, Bobby Vance, should be entitled to all of his father's share. The majority's holding—allowing Rebecca and Bradley to be co-representatives along with Bobby Vance—conflicts with our jurisprudence's implementation of a per stirpes devise. By allowing Rebecca and Bradley to take from their uncle, the majority has extended and modified an otherwise basic per stirpes distribution to allow certain members of a class, whose root did not predecease the testatrix, to take as representatives through an indirect ancestor absent clear intent from the will.

We believe that the strained application of Bryant to devises such as this would lead to unnecessary litigation, uncertainty and dispositions of property that are not the most likely intent of testators and testatrixes.


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