Bohannon v. Trotman
| Decision Date | 01 February 1939 |
| Docket Number | 747. |
| Citation | 200 S.E. 852,214 N.C. 706 |
| Parties | BOHANNON v. TROTMAN et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; H. E. Olive, Special Judge.
Action by Ernest F. Bohannon, Jr., against Maude Bohannon Trotman and husband and others to approve a family settlement. From a judgment approving the settlement, defendants appeal.
Affirmed.
Beneficiaries under will of testator who was induced by false and fraudulent representations to abandon his intention to leave grandson a large part of his property were "constructive trustees" the same as if property were in hands of original wrongdoers.
"This cause coming on to be heard before the undersigned Judge presiding at the October, 1938, Term of Forsyth County Superior Court, and all the parties being represented in this hearing by counsel, and, in open court, having waived any right that they might otherwise have to have any of the matters involved in this action tried by a jury, and having agreed that the matter should be heard, both as to the law and the facts, by the undersigned judge, which agreement made in open court is hereby ordered to be entered in the minutes and the Court having heard the pleadings herein and the records in the case, and having heard evidence, and having made a full investigation of the facts, hereby makes the following findings of fact:
1. That F. M. Bohannon, late of Forsyth County, North Carolina, died on the 25th day of December, 1929, leaving a last will and testament, a copy of which is attached to the complaint in this action as Exhibit A, and which is hereby referred to and made a part of this finding of fact as fully as if set out herein in full. Said will has been duly probated and Wachovia Bank & Trust Company has heretofore duly qualified as executor and trustee under said will; that it has performed all its duties as executor under said will, and has its final account as executor, but continues to hold the residue of the estate of F. M. Bohannon passing to it as trustee in said capacity as trustee under said will in accordance with the terms thereof.
2. That Laura Webb Bohannon, widow of F. M. Bohannon, died a resident of Forsyth County, North Carolina, on the 17th day of June 1933, leaving a last will, a copy of which is attached to the complaint herein as Exhibit B, and which is hereby referred to and made a part of this finding of fact as fully as if set out herein in full. Said will has been duly probated and Wachovia Bank & Trust Company has heretofore duly qualified as executor and trustee under said will; that it has performed all its duties as executor under said will, and has filed its final account as executor, but continues to hold the residue of the estate of Laura Webb Bohannon passing to it as trustee in said capacity as trustee under said will in accordance with the terms thereof.
3. This action involves a proposed settlement of a certain civil action originally instituted in the Superior Court of Mecklenburg County, North Carolina, by Ernest F. Bohannon Jr., as plaintiff, against Wachovia Bank & Trust Company Executor and Trustee of the Estate of Laura Webb Bohannon and Maude Bohannon Trotman, which civil action has heretofore been considered by the Supreme Court upon a question as to the sufficiency of the plaintiff's cause of action, the decision therein being reported in Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390. After the decision of the Supreme Court in said cause, the said action was removed from Mecklenburg County to Forsyth County for trial and thereafter the plaintiff therein filed an amended complaint and obtained an order making the children of Maude Bohannon Trotman, hereinafter referred to, and Wachovia Bank & Trust Company, as trustee of the estate of F. M. Bohannon, parties defendant. The entire record in said civil action has been introduced in evidence in this cause, and the allegations of the complaint and the amended complaint therein are all before the Court, and said record is hereby referred to for a full statement of the causes of action alleged in said civil action. Said civil action and the proposed settlement thereof involve questions as to the distribution of the estate of F. M. Bohannon and a cause of action for damages against the estate of Laura Webb Bohannon, growing out of alleged interference, by Laura Webb Bohannon and Maude Bohannon Trotman, with an intended disposition of the property of F. M. Bohannon, it being alleged that but for said wrongful interference the said F. M. Bohannon would have given a one-fifth interest in all his property to Ernest F. Bohannon, Jr. The property of F. M. Bohannon involved in the litigation and a one-fifth of the value of which is claimed by Ernest F. Bohannon, Jr., includes property which was transferred by F. M. Bohannon in his lifetime to a trustee for certain of the defendants, and also includes the residue of his estate passing under his will to the Wachovia Bank & Trust Company as trustee for certain of the defendants.
4. All persons, both those in esse and those not in esse, who have, or might have, any interest or claim in any of the property of the trust estate of F. M. Bohannon, or in the inter vivos trusts created by him, or in any of the property of the trust estate of Laura Webb Bohannon, have been duly made parties to this action, and all parties in esse have been duly served with summons and a copy of the complaint; all parties in esse but not sui juris, are duly represented herein either by duly appointed, qualified and acting general guardians, or by duly appointed guardians ad litem; all guardians and guardians ad litem have been duly served with summons and copy of the complaint and have filed answer in behalf of their respective wards; all persons not in esse who have, or might have, any interest in the matters involved in this action are likewise properly before the court, being represented by duly appointed guardians ad litem who have filed answers in their behalf; that the interests of the estates of F. M. Bohannon and Laura Webb Bohannon, and of all persons who might be entitled to any interest under their respective wills, are further represented by Wachovia Bank & Trust Company as trustee under each of said wills; that said Wachovia Bank & Trust Company has filed an answer in its capacity as trustee under each of said wills and is represented in the action and at this hearing by separate counsel in each of said capacities; the Court holds that all parties in interest are duly and properly before the Court in such a manner as to be bound by the decree of the Court, and are properly represented in the action and at this hearing. Ernest F. Bohannon, Sr., has been duly served with summons and a copy of the complaint and has filed in writing express waiver of his right to file an answer, and has filed a consent to the settlement provided for in the contract, a copy of which is attached to the complaint as Exhibit 'G'.
5. The defendants Maude Bohannon Trotman and Ernest F. Bohannon, Sr., are the only children of F. M. Bohannon and Laura Webb Bohannon; that Ernest F. Bohannon, Jr., is the only child of Ernest F. Bohannon, Sr., and the only children of Maude Bohannon Trotman are the defendants John Franklin Trotman, Laura Elizabeth Trotman, Marion Jackson Trotman, Mary Camille Trotman and William Cecil Trotman; that the defendant J. C. Trotman is the husband of the defendant Maude Bohannon Trotman. That no child of Maude Bohannon Trotman has died leaving issue.
6. That J. C. Trotman and Wachovia Bank & Trust Company are the duly appointed, qualified and acting general guardians of each of the defendants Laura Elizabeth Trotman, Marion Jackson Trotman and Mary Camille Trotman, all of whom are minors; that the defendant William Cecil Trotman is a minor without general or testamentary guardian, and that Edward S. Heefner, Jr., has been duly appointed as guardian ad litem, and is duly representing said minor in this action; that Calvin Graves, Jr., has been duly appointed as guardian ad litem, and is duly representing Ernest F. Bohannon, Sr.; that Gaither Jenkins has been duly appointed as guardian ad litem, and is duly representing all unborn children of Maude Bohannon Trotman and all unborn issue of unborn children of Maude Bohannon Trotman and all unborn issue of John Franklin Trotman, Laura Elizabeth Trotman, Marion Jackson Trotman, and of Mary Camille Trotman.
7. That Wachovia Bank & Trust Company is a corporation organized under the laws of North Carolina, and is duly authorized to act as executor, trustee and guardian.
8. That prior to the death of F. M. Bohannon, he had established for the benefit of John Franklin Trotman, Laura Elizabeth Trotman, Marion Jackson Trotman and Mary Camille Trotman, who are all the children of Maude Bohannon Trotman born prior to the death of F. M. Bohannon, certain trusts, there being a separate trust for each of said children, and the funds here in said trusts at the time of the death of said F. M. Bohannon aggregated $761,519.95.
9. That, in addition to the property contained in the trusts set out in the preceding finding, F. M. Bohannon left at his death the property shown on Exhibit 'G' attached to the complaint herein which had an inventory value of $1,532,625.62, and included all the property passing under the will; that the person entitled to the corpus of the residue of said estate now in the hands of Wachovia Bank & Trust Company as trustee under the terms of said will are John Franklin Trotman, Laura Elizabeth Trotman, Marion Jackson Trotman, Mary Camille Trotman, William Cecil Trotman and any other child or children who may be born to Maude Bohannon Trotman. In the event of the death of any of said Trotman children...
To continue reading
Request your trial