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Dyer v. Dyer

Although decedent's will stated that her additional sons had the right to build a house on property bequeathed to one son, any alleged easement created by this language failed because such an easement would act as a complete restrain on alienation of property.

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This is an appeal by co-executor Roger Dyer from the superior court’s construction of certain provisions of the last will and testament of his mother, Emma Linda Dyer. For the reasons which follow, we affirm.

Worth Dyer and his wife, Emma Linda Dyer, executed a joint will dated June 4, 1981. Worth died in 1981, Emma on September 20, 1999. Roger and Sonny Dyer, sons of the decedents, were named co-executors of the estate.1 In June 2000, Roger Dyer, as co-executor, filed a “Petition for the Construction of a Will” in the Superior Court of Union County. The petition asked the Court to interpret Items Four and Five of the will regarding the disposition of the real property owned by Emma Dyer at her death. A survey of the real property showed three tracts: Tract One consisting of 5.67 acres; Tract Two consisting of 1.15 acres and containing a one-story brick home, garden area, and asphalt drive; and Tract Three consisting of 65.34 acres.

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