Britt v. Upchurch , 96 N.C. App. 257 ( 1989 )

LEWIS, Judge.

The issue below in this case was whether Mr. Hartman intended for the adjoining lot, No. 37, to pass with the “residence,” Lot 36, under the above quoted passage, or whether it was intended to pass in fee to Ada Cassie Hartman under the residuary clause. Defendant assigns as error the entry of summary judgment against her in favor of the plaintiff. Defendant also assigns as error the failure of the trial court to consider the affidavit of Thomas F. Adams, Jr., the attorney who prepared Mr. Hartman’s will. We agree with the defendant and reverse.

At the hearing on summary judgment, the trial court refused to consider the affidavit of Thomas F. Adams, Jr., the attorney who prepared Mr. Hartman’s will. In his affidavit, Mr. Adams stated:

It is my best recollection that Mr. Hartman mentioned to me on the day he came to execute his Will that he owned a vacant lot adjacent to the lot on which his residence was located.

It is also my best recollection that I suggested that the Will be redrawn to clarify that this lot was or was not deemed to be a part of the lot on which his residence was located. My best recollection of his response was to the effect that he had had one or more heart attacks and was very ill; that he wanted to sign his Will without waiting for it to be rewritten; that he wanted his Wife to have the vacant lot and the residuary clause was sufficient to devise it to her; that everyone knew that it was not a part of his residence lot and had never been cleared and made a part of the yard (he said it was covered by trees and undergrowth); and that the residence lot and the vacant lot were purchased at separate times.

Defendant argues that this evidence is admissible as evidence of the testator’s intent when he disposed of the two lots. Extrinsic evidence surrounding the circumstances of a devise is admissible when there is a latent ambiguity. Redd v. Taylor, 270 N.C. 14, 22, 153 S.E.2d 761, 766 (1967). In the present case, whether “my residence at 2615 Cooleeme (sic) Street” includes the adjacent lot is a latent ambiguity as to what land was included under that designation.

Plaintiff has submitted her own affidavit showing that Mr. Hartman had built a garage and tool shed on Lot 37, a concrete sidewalk from the house to the garage, and partially paved the driveway. Mr. Hartman also erected a doghouse and a pen on Lot 37. All of this evidence was admitted at the hearing on summary judgment to show that the testator and his family treated the two lots as one single residence. In support of her position, plaintiff cites Thomas v. Summers, 189 N.C. 74, 126 S.E. 105 (1925), where the testatrix devised to the defendant “my home place on Mclver Street.” At the time of her death, she owned two lots on Mclver Street, one purchased 29 October 1915 and the other on 19 November 1915. Shortly before her death, the testatrix had contracted to have an iron fence placed around the two lots. Plaintiff cites this case for the proposition that extrinsic evidence is admissible to prove that the testator treated the two lots as a single residence. However, the court also considered statements made by the testatrix that she considered the two lots as “my home place.” Id. at 75, 126 S.E. 106. The court rejected the argument that the statements were incompetent, stating, “if there be a patent ambiguity in an instrument, the instrument must speak for itself, and evidence dehors cannot be resorted to ... in cases of latent ambiguity, evidence dehors is not only competent, but necessary.”Id. at 76, 126 S.E. 107 (emphasis original), accord, Redd v. Taylor, 270 N.C. 14, 22, 53 S.E.2d 761, 766 (1967).

In the present case, whether the testator considered the adjacent lots to be his single residence is a latent ambiguity. The defendant’s affidavit is admissible to show his intent. Both parties have offered affidavits showing contrary intent — the plaintiff’s affidavit tends to show that the testator treated the two lots as a single residence; the defendant’s affidavit shows that the testator made statements at the time of the execution of his will that he considered the lots separate properties. The weight and credibility to be given to these statements is for the jury to determine as finder of fact. Material issues of fact exist.

Reversed and remanded.

Judges Phillips and Cozort concur.