Baptist Female University of North Carolina v. Borden

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J.
• Citation: Baptist Female University of North Carolina v. Borden, 132 N.C. 476, 44 S.E. 47 (N.C. 1903)
• Decision Date: 28 April 1903
• Parties: BAPTIST FEMALE UNIVERSITY OF NORTH CAROLINA et al. v. BORDEN.

44 S.E. 47

132 N.C. 476

BAPTIST FEMALE UNIVERSITY OF NORTH CAROLINA et al. v. BORDEN.

Supreme Court of North Carolina

April 28, 1903

Appeal from Superior Court, Wayne County; Robinson, Judge.

Submission of controversy between the Baptist Female University of North Carolina and others and E. B. Borden, as executor of the estate of W. T. Faircloth, deceased, and others. From a decree settling the rights of the parties, both sides appeal. Modified.

Clark C.J., and Douglas, J., dissenting.

W. N Jones and Battle & Mordecai, for plaintiff.

F. A Daniels, for defendant. John E. Woodard and W. T. Dortch, for legatees. W. C. Munroe, for defendant Faircloth.

CONNOR J.

This is a controversy submitted without action under the Code by the plaintiffs, the Baptist Female University and the Trustees of The Thomasville Baptist Orphanage and the Trustees of Wake Forest College against E. B. Borden, executor of W. T. Faircloth, deceased, and E. E. Faircloth, widow of said deceased, and other devisees and legatees named in the will of the said testator, for the purpose of obtaining a construction of the will of the testator, and direction to the executor in regard to the administration of his trust.

The facts necessary to a decision of the case are:

(1) That W. T. Faircloth died in the county of Wayne on the 29th day of December, 1900, leaving no children or issue of such, leaving, him surviving, his widow, E. E. Faircloth.

(2) That the defendants Frank W. Faircloth, Douglas B. Faircloth, Samuel L. Faircloth, and Callie Faircloth, Clara A. Lane, Susan E. Woodard, Fannie M. Faircloth, are the nephews and nieces of the said W. T. Faircloth, and are also his heirs at law.

(3) That the said W. T. Faircloth left a will, which was duly admitted to probate, and the executor therein named, the defendant E. B. Borden, duly qualified.

(4) That since the death of W. T. Faircloth and the probate of said will, his widow, E. E. Faircloth, has duly filed her dissent thereto, and claims such share of the estate of her husband as she would have been entitled to if he had died intestate. Her year's support, amounting to $2,000, has been duly allotted to her.

(5) In addition to such claims, the estate of said testator is indebted to her in the sum of $10,342.07, with interest thereon from the 12th of February, 1900, which has been reduced to judgment.

(6) That on or about the 1st day of December, 1900, said testator made a subscription of $1,000 to the Baptist Female University of North Carolina for the purpose of aiding in the payment of certain indebtedness already created, amounting to more than $40,000, of said University. That said University is a school under the control of the Baptist denomination, of which the said testator was a member. That such subscription was made or given to Dr. R. T. Vann, president of said institution, a part of whose duty it is to solicit subscriptions for the payment of said debt. The said testator verbally authorized the said Dr. R. T. Vann to announce the said subscription in a public convention of the Baptists of North Carolina at one of its sessions where other amounts were subscribed by various parties, and the same was announced in the presence of said testator. That said subscription was published in the public prints. That most of the said subscriptions are paid. That the said university, being indebted as aforesaid, employed agents to solicit subscriptions for the payment of said indebtedness, and in securing said subscriptions it incurred liability to said agents. That, after said subscription was made as aforesaid, the said testator executed his will, which is hereto attached, and made the devises to the university set out in the same.

(7) That the estate of the said W. T. Faircloth, at the time of his death, was worth about $70,000, of which about $30,000 consisted of real estate and about $40,000 of personalty.

(8) That of the personal estate about $3,000 was money in bank, subject to check, and the remainder of said personal estate consisted of notes, stocks, and bonds, his library and household furniture, the said library and household furniture not exceeding in value $1,000, and of said stocks and bonds some have market value and others no market value, and some of which are above and some below par.

(9) That the real estate described in item 7 of said will is worth from $7,000 to $8,000, the real estate described in item 13 of said will is worth from $13,000 to $17,000, and the real estate described in item 14 of said will is worth from $5,000 to $8,000.

(10) That after the payment of debts, except the debt claimed by Mrs. Faircloth and the expenses of administering the estate, there will be in the hands of the executor for distribution under the said will or as the law directs about $34,000 of personal estate.

(11) That there will not be a sufficiency of said personal estate to pay the legacies provided for in item 6 of the will after the payment to Mrs. E. E. Faircloth of her distributive share of the estate and her claim of $10,342.07.

(12) That after the payment of the share of personal estate of which Mrs. Faircloth will be entitled and her claim of $10,342.07 there will not be sufficient to pay the legacies provided for in item 6 of the will, if the value of the property in item 7 is added to the remainder of the personal estate.

(13) That after the payment of the share of the personal estate to which Mrs. E. E. Faircloth is entitled and her claim of $10,342.07 there will not be sufficient to pay the legacies given in items 1, 2, 3, 4, 5, 6, 10, and 11 of said will, if the value of the property devised in item 7 is added to the remainder of the personal estate.

(14) That since the death of said W. T. Faircloth, by consent, the defendant J. W. Gardner has rented out the real estate, and has received rents and profits thereof, and he now has in hand of said rents and profits the sum of $______, to be disposed of as the court may direct.

(15) That the dower of Mrs. Faircloth has been duly allotted to her, and covers the following property devised in said will: The house and lot in which the said W. T. Faircloth lived at the time of his death, fronting on George street, being the lot referred to in item 8, section 5, of the will of said testator, and also the two-story brick store on Walnut street, mentioned in item 8, section 2, of said will.

(16) That the said testator prior to his death leased a part of the property mentioned in item 7 of said will to the United States government by deed registered in the county of Wayne. That since his death, in accordance with said contract, liabilities to the amount of $______ have been incurred for equipments for free delivery in Goldsboro, $______ for coal, $______ for water and repairs upon property embraced in said lease.

The portions of said will necessary to be set out for the purpose of disposing of this cause are as follows:

In items 1, 2, and 3 general legacies are given to persons therein named of $100 each.

In item 4 the testator gives to Frank W. Faircloth his watch and chain, and also certain real estate situated in the state of Virginia.

In item 5 he gives to the Trustees of Thomasville Baptist Orphanage $1,000 in money.

In item 6: "I give and bequeath absolutely to my nephews and nieces, Douglas B. Faircloth, Samuel S. Faircloth, Clara A. Lane (wife of B. F. Lane), Susan E. Woodard (wife of Calvin Woodard), Fannie N. Faircloth, Frank W. Faircloth and Callie Faircloth (wife of said Frank W. Faircloth) each $4,000 to be paid by my personal representative to said legatees by turning over any of my bonds, stocks, notes or other evidences of debt, at their market value, and if these are not sufficient then the balance of said $4,000 each to be paid in money."

In item 7: "I give and devise to my widow E. E. Faircloth and her heirs my three story brick building in the North East intersection of John and Walnut streets in said city and the land on which it stands, (called the Law Building), also the single story brick store and lot on the East side of said Law Building, including ten feet right-of-way on the East side of single story store, all fronting on Walnut Street. This devise is in lieu of all moneys I received from her properties in Onslow County, North Carolina. I also give her $500 in cash in lieu of her year's allowance."

In item 8: "I loan and give to my wife E. E. Faircloth, during her life, the rents, use, profits and incomes of the following real estate in Wayne County, viz.:

"(1) Two resident lots fronting on James Street, lying between Walnut and Chestnut streets.

(2) My two story brick store, fronting on Walnut street and lying in the Northwest intersection of John and Walnut streets.

(3) My two story brick stores on the South side of and fronting on Walnut street, between L. D. Giddens and John Slaughter's stores.

(4) My Buckhorn plantation and farm on the South side of Neuse River in Wayne County, on which Rigdon Kornegay and Ely Cobb now live as tenants.

(5) My house and lot on which I now reside, fronting on George Street in the city of Goldsboro. These rents, incomes etc. mentioned in this Item, I intend to belong to my said wife absolutely and to be at her disposal absolutely."

In item 9 he disposes of his household and kitchen furniture, which has been allotted to the widow.

In item 10: "I give and bequeath to the Trustees of Wake Forest College my entire law library, for the use of the Law Department of said college."

In item 11: "I give and bequeath to 'The Trustees of the First Missionary Baptist Church,' at Goldsboro, and their successors, one thousand dollars for the use and benefit of said church, as said trustees may deem proper."

In item 12: "After...