holding that the fact finder need not believe a defendant’s explanation and may infer that he is trying to conceal guilt
How later courts described this case
- holding that the fact finder need not believe a defendant’s explanation and may infer that he is trying to conceal guilt
Written by the judges who cited it.
The opinion
Justice Mitchell
dissenting.
I respectfully dissent from the majority opinion for the reasons given by Chief Judge Morris in her opinion for a unanimous panel of the Court of Appeals. 52 N.C. App. 724 , 279 S.E. 2d 871 (1981).
I have no quarrel with the rules of law set forth in the well-written opinion of the majority. Like the majority, I am fully aware that the most basic rule of testamentary construction is that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. But where there is room for doubt as to the intent of the testator, both the legislature and our own prior cases require that a devise be held and construed to be a devise in fee simple absolute. G.S. 31-38; Basnight v. Dill, 256 N.C. 474 , 124 S.E. 2d 159 (1962); Clark v. Connor, 253 N.C. 515 , 117 S.E. 2d 465 (1960).
In the present case, I would find at the very least that there is doubt as to the meaning of the testator. The fact that a Superior Court Judge and three judges of the Court of Appeals have held contrary to the holding of the majority tends, in my view, to be at least some indication that the testator did not in plain and express words show an intent to convey to his wife an estate of less dignity than an estate in fee simple. There being some doubt as to what the testator intended, I would not attempt to draft the will for him but, instead, would affirm the Court of Appeals.