Bost v. Morris

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Bost v. Morris, 202 N.C. 34, 161 S.E. 710 (N.C. 1932)
• Decision Date: 08 January 1932
• Docket Number: 525.
• Parties: BOST v. MORRIS et al.

161 S.E. 710

202 N.C. 34

BOST v. MORRIS et al.

No. 525.

Supreme Court of North Carolina

January 8, 1932

Appeal from Superior Court, Cabarrus County; McElroy, Judge.

Suit by Harry J. Bost, executor of Ed S. Erwin, deceased, against Minnie E. Morris and others, to construe the will of deceased. From the judgment, the plaintiff and defendants other than named defendant appeal.

No error.

"General legacy" is one chargeable generally on testator's personal estate and not distinguishable from other parts thereof, or so given as not to amount to bequest of specific part of testator's personalty.

Ed S Erwin died November 13, 1927, leaving the following will which was duly admitted to probate:

"North Carolina, Cabarrus County.

"I Ed S. Erwin, of Cabarrus County, State of North Carolina do make this my last will and testament, as follows:

"Item 1. I give and devise to my beloved wife, Jennie Erwin, the track of land on which I live, containing about 200 acres, for and during the term of her natural life.

"Item 2. I give and bequeath to my sister, Minnie E. Morris, if she survives me, ten thousand dollars in stocks in an incorporated company or companies to be selected by her, at its then par value.

"Item 3. I give and bequeath to my beloved wife, Jennie Erwin, the sum of $10,000; and to my uncle John V. Bost, the sum of $1,000.

"Item 4. I give to Rocky River Church in Cabarrus County, N. C., the sum of $10,000, to be used by the proper officers of said church for any purposes they may think best.

"Item 5. I give and bequeath to my aunt, Mrs. Tinslow L. Bost, the sum of $500, to be paid to her by my executor.

"Item 6. All the rest and residue of my estate, both real personal and mixed of whatever nature or kind, I give and devise absolutely and in fee simple to my nephews Ed Bost and the children of T. L. Bost, who may be living at my death.

"Item 7. I hereby constitute and appoint Harry J. Bost, executor of this my last will and testament, and instruct him to employ my friend J. L. Crowell as his attorney in the management of my estate.

"In witness whereof, I, the said Ed S. Erwin, have hereunto set my hand and seal, on this the 3rd day of April, 1923.

"Ed. S. Erwin. [Seal.]

"Witnesses:

"A. F. Goodman,

"C. L. Propst."

"North Carolina, Cabarrus County.

"I, Ed S. Erwin, do make this codicil to my foregoing will, dated April 3, 1923, which I reaffirm, except as herein modified:

"Out of the property and estate which I have given my wife, is to be deducted a note and interest which I hold against her for $1,500 dated Jan. 26, 1920.

"This April 7, 1923.

"Ed S. Erwin. [Seal.]

"A. F. Goodman, Witness.

"C. L. Propst, Witness."

The executor qualified and on December 14, 1927, delivered to Minnie E. Morris, the legatee in item 2, a list of the stocks found in the lock box of the deceased with their appraised value as fixed by the Commissioner of Revenue. On December 17, 1927, the widow filed her dissent, and this changed the status of the estate. Owing to a change in values, the stocks were worth perhaps $30,000 less at the death of the testator than at the time the will was executed. A dividend was declared on January 1, 1928, for the previous six months and was paid to the executor. On the stocks selected by Minnie E. Morris the dividends amounted to $431. Within one year from the death of the testator other dividends were paid her.

The plaintiff brought suit to have the will construed, and upon the pleadings only one issue was submitted to the jury: "On what date did Minnie E. Morris deliver the list of stocks selected by her to the executor, Harry J. Bost, or his attorney, J. Lee Crowell, Sr.?" The answer was, "January 26, 1928."

It was adjudged upon the verdict that Minnie E. Morris is entitled to all the dividends paid after November 13, 1927, on the stocks which she selected on January 26, 1928--the dividends not to be paid her until she pays the executor $395.76, the amount of the inheritance tax assessed against her legacy by the Commissioner of Revenue and paid by the executor out of the assets of the estate. It was adjudged that the costs be paid out of the estate.

The par value of each of the shares selected was $100; their market value was appraised by the Commissioner at $12,962, and a tax of $408 was assessed on which a discount of 3 per cent. was allowed, leaving $395.76.

Hartsell & Hartsell and J. Lee Crowell, Sr., all of Concord, for appellant Bost.

J. L. Crowell, Jr., of Concord, for appellants residuary legatees.

Armfield, Sherrin & Barnhardt, of Concord, for appellee Minnie E. Morris.

ADAMS J.

When the plaintiff brought suit for a construction of the will, it was found that the second item is the substantial ground of the controversy; the others being material only as they serve to reveal the testator's intent. It was necessary to submit to the jury a single issue, the answer to which fixed the time when the appellee delivered to the plaintiff the list of stocks which she had selected. The date was January 26, 1928; and, after this finding, the court adjudged that the legatee named in the second item is entitled to all the dividends on the selected stocks since the testator's death, which occurred on November 13, 1927. The appellants say that this part of the judgment is erroneous; that the appellee...