Branch Banking & Trust Co. v. Whitfield

• Decision Date: 12 June 1953
• Docket Number: No. 394,394
• Citation: 238 N.C. 69,76 S.E.2d 334
• Parties: BRANCH BANKING & TRUST CO. et al. v. WHITFIELD et al.
• Court: North Carolina Supreme Court

Page 334

76 S.E.2d 334

238 N.C. 69

BRANCH BANKING & TRUST CO. et al. v. WHITFIELD et al.

No. 394

Supreme Court of North Carolina.

June 12, 1953

Whitaker & Jeffress, Kinston, for plaintiff, appellant.

Wallace & Wallace, Kinston, for defendant, appellees.

PARKER, Justice.

Actions for a declaratory judgment under the provisions of G.S. § 1-253 et seq. will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404; Etheridge v. leary, 227 N.C. 636, 43 S.E.2d 847; Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450. 'It does not extend to the submission of a theoretical problem or a 'mere abstraction.' * * * It is no part of the function of the courts * * * to give advisory opinions, or to answer moot questions * * *.' Poore v. Poore, 201 N.C. 791, 161 S.E. 532, 533. 'The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advise.' Lide v. Mears, supra [231 N.C. 111, 56 S.E 2d 409].

The plaintiff alleges in its complaint that Katherine Rose Whitfield who was 18 years of age on 1 February 1953, told it that she was considering and contemplating marriage prior to her 21st birthday, and upon such marriage prior to her 21st birthday she would demand that the plaintiff pay her $5,000 as a wedding present from her father in accord with the provisions of Section 3, Item VI of the will. George F. Whitfield who will be 17 years of age on 21 August 1953, made a similar statement to the bank, and said he would make a similar demand upon his marriage under Section 5, Item VI of the will.

The lower court signed a judgment directing that the plaintiff as trustee pay to Katherine Rose whitfield $5,000 upon her marriage, regardless of whether she was 21 years old at the time, and directed a similar payment to George F. Whitfield upon his marriage, though he married while a minor.

These two minors may marry before they are 21 years of age; they may not. There is no allegation in the complaint that either, or both are engaged, and the date of the proposed wedding set. The complaint merely alleges that the minors are considering marriage before their 21st birthday. The best-laid plans 'gang aft agley.'

It seems to us that the question as to whether the plaintiff as trustee shall pay to these two minors $5,000 as a wedding present under the will, if they, or either of them, marry before reaching the age of 21 years presents merely an academic problem, which may or may not arise. That part of the action which requests advice in the administration of the trust estate under Sec. 3 and Sec. 5 of Item VI of the will is ordered dismissed as there is no real existing controversy between the parties on that point, and will not be, unles one or both marry before reaching 21 years of age.

This question is presented: was it the duty of the plaintiff to turn over to Katherine Rose Whitfield the jewelry bequeathed to her in Item II of her father's will when she reached the age of 18 years, and is it its duty to turn over to George Franklin Whitfield the jewelry bequeathed to him in Item III of his father's will, when he reaches the age of 18 years, or to deliver to him the jewelry at an earlier age, if the plaintiff in its best judgment and discretion deems that it will promote the happiness and best interest of George Franklin Whitfield to do so?

To answer this question we must ascertain the intent of the testator as expressed in his will. When that intent is ascertained, the command of the law is 'thy will be done,' unless contrary to some rule of law or at variance with public policy. House v. House, 231 N.C. 218, 56 S.E.2d 695; Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888.

When the intention of the testator is clearly and consistently expressed, there is no need for interpretation. McCallum v. McCallum, 167 N.C. 310, 83 S.E. 250. A writing is not doubtful if it has the same meaning to everyone. Krites v. Plott, 222 N.C. 679, 24 S.E.2d 531. Construction belongs to the field of ambiguity, or where different impressions are reasonably made on different minds. Walton v. Melton, 184 Va. 111, 34 S.E.2d 129, 162 A.L.R. 1127; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17. A will is to be given effect according to its obvious intent. Brock v. Porter, 220 N.C. 28, 16 S.E.2d 410.

Considering Dr. Whitfield's will from its four corners it is perfectly obvious that he has expressed his intent in language that is clear. definite, explicit and plain of meaning that his daughter Katherine Rose should be given by the plaintiff the jewelry bequeathed to her in Item II of his will when she reached the age of 18 years, if not earlier, and a similar intent in respect to his son as to the jewelry bequeathed to him in Item III of his will. There is no room for construction, and the courts must give effect to his will, as he has seen proper to express it, unless contrary to law or public policy. McCallum v. McCallum, supra; Coppedge v. Coppedge, supra.

Where a will does not specifically provide when a legacy shall be delivered or paid, it seems to be the general rule that a bequest to, or the distributive share of a minor, can be legally paid only to his properly qualified guardian in his fiduciary capacity. 34 C.J.S., Executors and Administrators, § 497, page 400 et seq.; Schouler on Wills, Executors and Administrators, 6th Ed., sec. 3094; Walker v. Walker's Ex'rs, 7 N.C. 265; Fidelity Trust Co. v. Walton, 198 N.C. 790, 153 S.E. 401.

A different question arises when the testator fixes in his will the time for the payment or delivery of legacies.

In 69 C.J., Wills, sec. 2633 it is written: 'It is perfectly competent for the testator to fix by will the time for payment or delivery of legacies therein provided for, so long as his restrictions violate no rule of law, and the period is not so uncertain as to be unreasonable, and a court has no power to alter the time of payment so prescribed. Thus, the testator may fix the time of payment within sixty days after his death, on the arrival of the legatee at majority, or some earlier or later age. * * *' This appears to be the general rule though in Re Robertson, 17 Ont.L. 568, 13 Ont.W.R. 208; Re Noyes, 17 Ont. W.N. 302, it has been held that directions to pay to minor have been held not final in the absence of a provision in the will that the infant's receipt shall be a sufficient discharge.

4 Page on Wills (Lifetime Ed.) sec. 1589 states the law thus: 'If testator provides specifically in his will at what time a legacy is to be paid, this direction will be enforced, provided that it is not in violation of the rule against perpetuities, and provided it does not violate the rights of testator's creditors. * * * Where testator provides that a certain legacy shall be paid to the beneficiary upon his arrival at majority, or some other specified age, it is payable only at the time fixed. It may, however, be made payable to the legatees personally even though they are not of age.' Citing many authorities from various states.

'Wills often contain special provisions as to time of payment which must be followed.' Schouler, supra, sec. 3153.

That the respective legacies of jewelry are vested and absolute is undeniable. Shelton v. King, 229 U.S. 90, 33 S.Ct. 686, 57 L.Ed. 1086. The provisions in the will as to when the jewelry should be delivered did not postpone the gift, but only its enjoyment. Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420.

Our decisions are in accord with the rule stated in C.J.S., supra; Page on Wills, supra...