Eva FORESTER
v.
Zella Freeman MARLER et al.
No. 7624SC242.
Court of Appeals of North Carolina.
October 6, 1976.*648 McGuire, Wood, Erwin & Crow by William F. Wolcott, III, and Larry E. Davis, Asheville, for petitioner-appellee.
Ronald W. Howell, Marshall, for respondents-appellants.
Barden & Ruff, Asheville, for Stephen L. Barden, III, Guardian ad Litem for the unknown heirs of Jack Freeman and all unborn persons related to Jack Freeman.
Adams, Hendon & Carson, P. A., Asheville, for James Gary Rowe, Guardian ad Litem for the unknown heirs of Elmer R. Freeman and all unborn persons related to Elmer R. Freeman.
PARKER, Judge.
The devolution of a lapsed devise or legacy is controlled by G.S. 31-42. Subsection (c) of that statute provides that where a devise or legacy lapses, it shall pass under the applicable residuary clause or, if there be none, then as if the testator had died intestate with respect thereto, "if a contrary intent is not indicated by the will." We agree with the trial court's conclusion that a contrary intent is not indicated by the will of Elmer R. Freeman, and we affirm the judgment directing distribution of the entire estate to the petitioner, who, as the sole surviving parent, is the person entitled to take the entire estate under the applicable intestate succession statute, G.S. 29-15(3).
We find unpersuasive the contention made by appellants that a contrary intent was indicated by the will of Elmer R. Freeman because he devised and bequeathed all of his property to his brother, Jack Freeman, "absolutely and in fee simple forever." These are technical words which defind the quantum and quality of the estate granted. They do not indicate an intention that the property affected should remain in the family of Jack Freeman in event he should predecease the testator. "[T]he technical term `in fee simple' is to be given its technical meaning in the absence of a clear expression of a contrary intention in the will itself." Olive v. Biggs, 276 N.C. 445, 459, 173 S.E.2d 301, 310 (1970). We find no such contrary intention expressed in the will of Elmer R. Freeman. The statement in Item Two that the testator was "fully aware" of who his blood relatives were and of all that they, or any of them, had done or failed to do for him, and that he was "taking this family history into consideration" in making the disposition of his property to his brother, simply falls short of expressing any intention that his brother's family, or, indeed, anyone else in particular, should take in event his brother should predecease him. Such an intention, had the testator entertained it, could have easily been expressed in simple and direct language.
We also reject appellants' contention that summary judgment was improper because a genuine issue of fact was shown to exist concerning the extent of the testator's association and affection for his brother's family as compared with his association and feelings toward his mother. The conflicting affidavits filed by the parties concerning these matters were simply not relevant to any issue before the court, and they were properly ignored by the court in making its determination. The intention of the testator must be determined from the will itself. Where, as here, the language in the will is not ambiguous, no evidence outside the instrument is competent in determining the intent of the testator. 7 Strong, N.C. Index 2nd, Wills, § 28. There was in this case no genuine issue as to any material fact, and petitioner was entitled to judgment as a matter of law.
We also find no merit in appellants' further contention that, even if no contrary intention is contained in the express language of the will, the provisions of subsection (a) of G.S. 31-42 apply in this case so as to pass to the issue of Jack Freeman by substitution the devise made to him by Item Two of the will of Elmer R. Freeman. G.S. 31-42(a) provides that, unless a contrary intent is indicated by the will, a devise or legacy given to one who dies before the testator "shall pass by substitution to such issue of the devisee or legatee as survive the testator in all cases where such issue of the deceased devisee or legatee would have *649 been an heir of the testator under the provisions of the Intestate Succession Act had there been no will." In support of their contention, appellants point out that the will of Elmer R. Freeman was executed on 20 June 1959, when the old Statute of Descent was still in effect, and that on that date the lineal descendants of Jack Freeman, had he predeceased his brother Elmer, would have been included among the heirs of the testator. The will, however, though dated 20 June 1959, speaks as of the date of the testator's death which was 9 April 1974. On that date G.S. Ch. 29, enacted by Ch. 879 of the 1959 Session Laws, was in effect and applicable to estates of persons dying on or after 1 July 1960. By virtue of G.S. 29-15(3), the petitioner became solely entitled to receive the entire estate of her son in event of his death intestate. Thus, on the date the will became effective to pass any property, i. e., on the date of the testator's death, the issue of Jack Freeman would not have been "an heir of the testator under the provisions of the Intestate Succession Act had there been no will." Thus, G.S. 31-42(a) has no application under the facts of this case.
The judgment appealed from is
Affirmed.
BROCK, C. J., and ARNOLD, J., concur.