Anderson v. Bridgers

• Decision Date: 26 February 1936
• Docket Number: 111.
• Citation: 184 S.E. 78,209 N.C. 456
• Parties: ANDERSON v. BRIDGERS et al.
• Court: North Carolina Supreme Court

184 S.E. 78

209 N.C. 456

ANDERSON v. BRIDGERS et al.

No. 111.

Supreme Court of North Carolina

February 26, 1936

Appeal from Superior Court, Edgecombe County; Moore, Special Judge.

Action by Arthur Anderson, executor of O. L. Pittman, deceased against Elma Anderson Bridgers and others, and William Louis Poteat and others, trustees of the North Carolina State Baptist Convention. From the judgment construing a will and codicils, all parties except such trustees appeal.

Affirmed.

O. L Pittman died on 1st day of April, 1930, leaving a last will and testament and codicils, which were filed and probated on April 9, 1930. Plaintiff duly qualified as executor of the estate of said testator before the clerk of the superior court of Edgecombe county, N. C., on 9th day of April, 1930 and at once entered upon the administration of his testator's estate.

This is an action brought by plaintiff against the defendants devisees and legatees of the last will and testament of O. L Pittman, deceased, to sell land to pay the debts of the estate. After exhausting the personal property, the outstanding debts amount to the sum of about $9,000. Commissioners were appointed and the land duly sold. After the payment of debts, this controversy concerns how the remainder should be distributed under the last will and testament of O. L. Pittman.

On this appeal the paragraphs of the will and codicils to be construed are as follows:

Paragraph 6, in part, is as follows: "It is my desire and intention to so distribute my estate by this my will as to give my wife one-third of my estate, my brother, J. H. Pittman, during his life, and then to his children, one-ninth of my estate, the children of my deceased brother, Bisco Pittman, one-ninth of my estate, and my sister Carolina Anderson, during her life and then to her children, one-ninth of my estate, including herein the $1175.00 given to her son, H. O. Anderson in Item 5 of this my will, and to religious and charitable purposes, one-third of my estate."

Paragraph 7 is as follows: "I give, devise and bequeath all the rest and residue of my estate, of any kind and description, which I estimate to be about $15,000.00, to W. C. Tyree, J. P. Hackney, Noah Biggs, W. N. Jones and D. L. Grove, trustees of the State Baptist Convention, and their successors in office, to be by them held upon the following uses and trusts, viz: one-third thereof shall be invested in good interest bearing securities or loans and the interest and profits thereof be paid annually to the Baptist State Mission Board to be by them used in their discretion in aid of weak churches within the limits of the Roanoke Association. One-third thereof shall be invested in good interest bearing securities or loans and the interest and profits thereof be paid annually to the Board of Managers of the Thomasville Orphanage to be used by them in their discretion in the aid and support of that branch of said Orphanage known as the Kennedy Home. One-third thereof shall be invested in good interest bearing securities or loans and the interest thereof paid annually to the Deacons or those in charge of the Gethsemane Baptist Church at Cherry's Cross Roads in No. 6 Township, Edgecombe County, North Carolina, to be used by them in the repair of the church and in maintaining the church yard or cemetery around the church, and should there be more than sufficient for these purposes, such surplus, they shall pay on the salary of the Pastor of that church. But should the said Gethsemane Church be permitted to go down and to be abandoned, then and in that event the bequest for its benefit shall terminate and the third of the residue of my estate herein given said trustees for the benefit of said church shall revert to my estate."

The will was made and executed on April 25, 1913. A codicil was made July 31, 1924, and another codicil was made February 26, 1927, which, in part, is as follows: "I, O. L. Pittman, of the County and State aforesaid, do hereby make this codicil to my last will and testament made by me and dated on the 25th day of April, 1913, which I hereby ratify and confirm, except as the same shall be changed hereby. * * * (8) Since in my will and testament I have directed that one-third of my entire estate to be given to religious and charitable purposes without specifying the names of such religious and charitable institutions, it is therefore, my will and desire and I do hereby give and bequeath and devise one-third part of my entire estate to the said W. C. Tyree, J. P. Hackney, Noah Biggs, W. N. Jones and D. L. Grove, Trustees of the State Baptist Convention, and their successors in office, to be held in trust and used as directed in Item 7 of my will and testament." (Italics ours.)

Dr. William Louis Poteat, F. H. Brooks, and R. L. McMillan, trustees of the North Carolina State Baptist Convention, in their answer say in part:

"That it appears clear to these answering defendants that the testator intended that the trustees of the Baptist State Convention have and receive under and by virtue of his will one-third of his entire estate, and that according to the allegations and prayer for judgment in the petition herein, the said trustees of the North Carolina Baptist State Convention will receive nothing under the terms and conditions of said will.

That the Executor of said will has undertaken to set forth an interpretation of the same evidently under and by virtue of the provisions of sections 87 and 88 of the Consolidated Statutes of the State of North Carolina, which interpretation these answering defendants say is improper and not in keeping with the intention of the testator clearly expressed both in the original will and in the second codicil, and is not in keeping with the provisions of the law of the State of North Carolina; that these answering defendants state that the executor of said will should not take it upon himself to interpret the will clearly in favor of certain devisees and against the interest of other devisees named in said will, and knowing that the interpretation of the will, the provisions of which are seriously contested as in this case, is the duty and within the province of the Court, these answering defendants pray that this will be interpreted by the Court and that the sale of any of said real estate by the executor or by any one for him or in his behalf be stayed until such interpretation is had.

That according to the interpretation of the will placed thereon by the executor of the estate in his petition, the trustees of the North Carolina Baptist State Convention would be eliminated and would not share or participate in the assets of said estate, when in truth and in fact it appears both in the original will and in said codicil thereto that the testator clearly intended that the said trustees would have and receive one-third of the entire estate after the payment of debts from the proceeds of real estate if this became necessary, as it now appears is necessary, and it clearly appears from said will as the intention of the testator that...