William W. Carriker, Jr., et al. v. Casper O. Carriker, Jr., et al.

Estate Distribution, Will and Testament Construction - North Carolina resident James Edward Carriker ("testator") died on 2 January 1935. At the time of testator's death, he was survived by his wife, three daughters, and five sons. Testator owned two parcels of land. Upon his death, testator bequeathed a life estate in the property to his wife, who died on 1 April 1951. Upon his wife's death, testator's will gave his three daughters a life estate in the property for as long as they lived and maintained a home on the property. On 6 February 1996, the last of testator's three daughters died. Testator's will provided that upon the death of his three daughters, the property shall be equally divided among his "then surviving children." When testator's last daughter died, none of testator's five sons were living. Testator's will further provided that "if any child or children shall have died leaving legitimate child or children, then such child or children to take the share that their deceased parent would have taken had he or she been living." At the time of the death of the last daughter, the living legitimate children of testator's children were the following: two of testator's sons had two children each, who are the four plaintiffs in the instant action; and another of testator's sons had nine children, who are the defendants. Plaintiffs sought a declaratory judgment to construe the language of testator's will that provided for distribution of the property after the death of testator's last daughter. Plaintiffs claim the language in the will provides for a per stirpes distribution to testator's grandchildren on a representative basis. This distribution would mean that two plaintiffs would split a 1/3 share of the property, the other two plaintiffs would split a 1/3 share, and the nine defendants would split a 1/3 share. In contrast, defendants claim the language provides for a per capita distribution, meaning plaintiffs and defendants would share equally and would each get a 1/13 undivided interest.

Defendant's Verdict - Court granted sua sponte summary judgment in favor of Defendant grandchildren.

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Affirmed by the Court of Appeals of North Carolina. The Supreme Court of North Carolian reversed the Court of Appeals and remanded. See 511 S.E.2d 2 (N.C. 1999). Note that the above cited date is the date of appellate decision and not the trial date. Reported by C.H.