## Facts

- A testator executed a will devising “my residence at 2615 Cooleemee Street, Raleigh, North Carolina” to his wife for life, with the remainder to his daughter from a prior marriage.
- The will’s residuary clause devised the remainder of the testator’s property to the wife in fee simple.
- The testator owned two adjoining parcels: lot 36, containing the house and street address 2615, and vacant lot 37, separately listed in tax records and sometimes associated with a different street number.
- The wife occupied the property after the testator’s death; later she died leaving her property to her daughter.
- The wife’s daughter claimed lot 37 passed to the wife under the residuary clause and then to her under the wife’s will; the testator’s daughter claimed lot 37 was part of “my residence” and thus passed under the specific devise.
- The wife’s daughter offered an affidavit from the lawyer who drafted the will asserting the testator intended lot 37 to pass under the residuary clause.
- The trial court excluded the affidavit and granted summary judgment quieting title to lots 36 and 37 in the testator’s daughter; the court of appeals reversed; the state supreme court granted review.

## Issues

1. Whether an affidavit from the drafting attorney recounting the testator’s asserted intent was admissible to resolve a latent ambiguity in the will’s description of “my residence at 2615 Cooleemee Street.”
2. Whether, excluding the affidavit, summary judgment was proper on the question whether lot 37 was included within the devise of “my residence.”

## Decision

- The court reversed the court of appeals and reinstated the trial court’s summary judgment.
- The drafting attorney’s affidavit was inadmissible because it offered conclusions and recollections about the testator’s subjective intent rather than objective surrounding circumstances.
- On the admissible record, no genuine issue of material fact existed: “my residence at 2615 Cooleemee Street” included both lot 36 and adjoining lot 37.
- Lot 37 therefore passed under the specific devise (life estate to the wife; remainder to the testator’s daughter), not under the residuary clause.

## Legal Principles

- A latent ambiguity arises when will language appears definite on its face but becomes uncertain when applied to external facts.
- Extrinsic evidence may be admitted to cure a latent ambiguity, but only to the extent it explains the language by reference to objective facts and circumstances.
- Extrinsic evidence is not admissible to vary or contradict the will, or to supply what the testator allegedly meant to write but did not.
- Testimony or affidavits reflecting a third party’s impressions or conclusions about the testator’s intent to dispose of property are inadmissible for construing the will.
- Summary judgment is appropriate in a will-construction quiet-title action when the admissible evidence shows no genuine dispute of material fact and the will’s meaning can be determined as a matter of law.

## Conclusion

The court held that resolving a latent ambiguity permits evidence about the property and its use, but not a drafting lawyer’s asserted recollection of the testator’s intended distribution; excluding such evidence, the devise of “my residence” encompassed both the house lot and the adjoining lot, supporting summary judgment quieting title in the remainderman.


Britt v. Upchurch, 327 N.C. 454, 396 S.E.2d 318 (1990)