Hazel Way MORSE
v.
Catherine W. ZATKIEWIEZ, Executrix of the Estate of Juliette Orrell Way.
No. 695SC236.
Court of Appeals of North Carolina.
July 2, 1969.*221 Robert Calder, Wilmington, for plaintiff appellant.
Marshall & Williams, by Lonnie B. Williams, Wilmington, for defendant appellee.
*222 BRITT, Judge.
The following principles applicable to this case appear to be well settled in this jurisdiction:
(1) An allowance for alimony is a debt. Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204; 2 Lee, N.C. Family Law, § 158, p. 248.
(2) The statute of limitations does not apply to a judgment directing the payment of alimony. G.S. § 1-306; 2 Lee, N.C. Family Law, § 164, p. 269.
(3) A decree for absolute divorce on ground of two years' separation granted on 28 May 1951 does not destroy the wife's right to receive alimony pendente lite under a judgment entered on 16 September 1950 in a separate action instituted by her under G.S. § 50-16. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867; 2 Lee, N.C. Family Law, § 154, p. 239.
(4) Although a creditor who does not present his claim within six months from the date of the first publication of notice cannot hold the personal representative liable for any assets which he may have paid out prior to the commencement of an action by the creditor, he can share in any assets which remain in the hands of the personal representative. 2 Wiggins, Wills and Administration of Estates in N.C., § 237, p. 713, and cases therein cited.
Applying the foregoing principles to the instant case, (1) the unpaid payments on the 16 September 1950 alimony pendente lite judgment entered in favor of plaintiff against Robert O. Way constituted a debt of Robert O. Way; (2) the statute of limitations did not run against said indebtedness; (3) the indebtedness was not affected by the 28 May 1951 divorce decree; and (4) plaintiff's "claim" against Mrs. Way's estate was not cut off by plaintiff's failure to file the same with the executrix within six months after first publication of notice to creditors.
In his brief, plaintiff's counsel contends that plaintiff is not a creditor of Mrs. Way's estate and asserts no claim against the estate; he contends that plaintiff "was a creditor of and had a claim against the son of the decedent and by the terms of her will the decedent made the plaintiff a beneficiary by providing that the debts of her deceased son should be paid from the estate."
The final account filed by defendant discloses that the executrix received personal property consisting of receipts from savings and loan shares aggregating $6,545.59; that disbursements, consisting of funeral expenses, a doctor bill, state inheritance taxes, and costs of administration of the estate, aggregated $1,503.82; that the balance of the personal property in amount of $5,041.77 was paid to Catherine Way Zatkiewiez as the sole beneficiary under the will. The record indicates that the only other property left by the decedent was real estate of the value of approximately $22,000.00. Plaintiff contends that she is entitled to receive $11,955.00 plus interest calculated on the alimony payments from the dates they were due.
The first and second items of the will provided as follows:
"FIRST: I direct all of my just debts and funeral expenses shall be paid as soon after my death as can be conveniently done, and I further direct and hereby provide that all of my son's, ROBERT R. [sic] WAY, SR., debts and funeral expenses shall be paid out of my estate.
Second: I give, bequeath and devise all of my property, both real, personal and mixed, wherever situate, to my beloved daughter, Catherine W. Zatkiewiez * * *"
It will be noted that if plaintiff's "claim" is allowed, it will consume all of the personal property of the estate and a substantial portion of the real estate. Proceeding on plaintiff's theory that she is a *223 beneficiary by virtue of the first item of the will, we think there is a conflict between the first item and the second item which purports to make Mrs. Zatkiewiez the sole beneficiary. If the terms of a will are set forth in clear, unequivocal and unambiguous language, judicial construction is unnecessary; but when doubt exists as to what the testatrix intended, the court may be called on to construe the will. 1 Wiggins, Wills and Administration of Estates in N.C., § 132, pp. 396, 397, and cases therein cited.
Where a will contains a patent ambiguity, extrinsic evidence is not admissible to explain the meaning of the words used, and it is the duty of the court to declare the testatrix's intent as expressed in the instrument in accordance with established rules of construction; but where the patent ambiguity relates to intent, extrinsic evidence as to the facts and circumstances surrounding the testatrix at the time she executed the instrument is competent to aid the court in ascertaining the intent of the testatrix from the language of the instrument. 7 Strong, N.C. Index 2d, Wills, § 28, pp. 601, 602.
Defendant contends that the court should construe the will of Mrs. Way in light of circumstances existing at the time she executed the will. The record discloses that the will was executed on 16 February 1966 and at that time Robert O. Way was an inebriate, completely dependent on his mother; that he died less than two months later and Mrs. Way died eight months thereafter.
Although the facts in Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246, were different from those in the case at bar, we think the principles of law applied by the Supreme Court in that case are applicable to this case. We quote from the opinion written by Bobbitt, J.:
"Barnhill, J., now C. J., in Wachovia Bank & Trust Co. v. Waddell, supra, says: `In ascertaining the intent of the testator, the will is to be considered in the light of the conditions and circumstances existing at the time the will was made. Scales v. Barringer, 192 N.C. 94, 133 S.E. 410; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12.
`"* * * the court should place itself as nearly as practicable in the position of the testator * * * at the time of the execution of the will." In re Will of Johnson, supra.'
Clark, C. J., in Patterson v. McCormick, 181 N.C. 311, 107 S.E. 12, in a sentence frequently quoted, puts it this way: `The will must be construed, "taking it by its four corners" and according to the intent of the testator as we conceive it to be upon the face thereof and according to the circumstances attendant.'
Generally, `the circumstances attendant' when the will was made refers to the relationships between the testator and the beneficiaries named in the will, and the condition, nature and extent of his property. Hubbard v. Wiggins, 240 N.C. 197, 81 S.E.2d 630; Heyer v. Bulluck, supra; Herring v. Williams, 153 N.C. 231, 69 S.E. 140; Woods v. Woods, 55 N.C. 420.
It is frequently said, as in Heyer v. Bulluck, supra, that `the attendant circumstances' are to be considered `where the language is ambiguous, or of doubtful meaning.' In such case, the court undertakes `to put itself in the testator's armchair.' In so doing, as well expressed by Torrance, C. J., in Thompson v. Betts, 74 Conn. 576, 579, 51 A. 564, 566, 92 Am. St.Rep. 235: `In short, the court may, by evidence of extrinsic facts, other than direct evidence of the intention of the testator, put itself as near as may be "in the condition of the testator in respect to his property and the situation of his family," for the purpose of rightly understanding the meaning of the words of his will.'"
*224 We think Mrs. Way's will requires judicial construction. The question then arises, should this Court perform the judicial function of construing the will. This question was answered in Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888, in an opinion by Barnhill, J. (later C. J.), in the following language:
"Why doesn't this court perform this judicial function and be done with it? Simply because this court possesses no original jurisdiction in such matters. Its duty is to review the decisions of the superior courts of the State. The court below must exercise its original jurisdiction. If the parties are not then satisfied with the judgment entered they may bring the cause back for review."
Having decided that the superior court must make the determination, how will it perform the task? This question is answered in Wachovia Bank & Trust Co. v. Wolfe, supra, where it was held that "the question posed was for the court, without a jury. In the absence of stipulation, `the circumstances attendant' are to be established by findings of fact by the court." However, the trial judge, in his discretion, may submit questions of fact to a jury for determination. Wachovia Bank & Trust Co. v. Wolfe, supra.
Considering this case in the light of plaintiff's theorythat as a creditor of Robert O. Way she became a beneficiary under item one of the willand in view of the fact that item two of the will purports to name Mrs. Zatkiewiez sole beneficiary, we conclude that the will contains a patent ambiguity relating to the intent of the testatrix, making it necessary for the court to determine the intent of the testatrix and that extrinsic evidence as to the facts and circumstances surrounding the testatrix at the time she executed the instrument should be received to ascertain such intent. Therefore, the judgment of the superior court dismissing the action as in case of nonsuit is vacated and the cause is remanded to the Superior Court of New Hanover County for further proceedings not inconsistent with this opinion.
Error and remanded.
MALLARD, C. J., and PARKER, J., concur.