Brinn v. Brinn

• Court: North Carolina Supreme Court
• Writing for the Court: BARNHILL, Justice.
• Citation: Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793 (N.C. 1938)
• Decision Date: 24 March 1938
• Docket Number: 24.
• Parties: BRINN v. BRINN et al.

195 S.E. 793

213 N.C. 282

BRINN v. BRINN et al.

No. 24.

Supreme Court of North Carolina

March 24, 1938

Appeal from Superior Court, Perquimans County; Clawson L. Williams Judge.

Petition by Lilliebelle E. Brinn, in her own right and as executrix of the estate of J. T. Brinn, deceased, against T. P. Brinn and others for an interpretation and a declaratory judgment adjudicating rights of respective parties named in the will of J. T. Brinn, deceased. From the judgment, plaintiff and defendants appealed.

Modified and affirmed.

Where widow of testator had not remarried and it did not appear that she contemplated marriage, court in construing will was not required to determine rights of parties that would arise under will only in event of that contingency.

This is a civil action in the nature of a petition to the court instituted by the plaintiff, for the purpose of procuring an interpretation of the last will and testament of her testator and for a declaratory judgment adjudicating the rights of the respective parties named in the will. The will, submitted to the court for interpretation, is in the following language:

1. "I, J. T. Brinn, of Perquimans County, Hertford P. O North Carolina declare this to be my last will, and revoke any will previously made by me.

2. After the payment of all my just debts and funeral expenses, I dispose of my estate as follows:

3. I bequeath to my beloved wife Lillabelle W. Brinn, my entire real and personal property-as long as she remains my widow-to be handled as she chooses.

4. In the event of her marriage, it is my will that she retain only one-fifth interest in my estate and that the balance be divided equally among my four children.

5. In leaving my entire estate to my wife, to be handled as she chooses as long as she remains my widow, I make the following request of her:

(a) That she deal fairly and equally with our four children.

(b) That she consider amounts that I have advanced to them (for various purposes) in the following sums-Preston $9000.00, Onedia $2500.00, Rob Winslow $800.00, Jack $850.00-as amounts due the estate (without interest) and that these amounts be added to what may be otherwise determined as the cash value of my estate and that each child's part be determined as one-fifth the total-less amount advanced to him or her. That she make such distribution as, or when, she may see fit.

(c) That, as soon as she can conveniently do so, if, and when the funds are available, invest safely with some insurance company, Trust Company, or otherwise the sum of Twenty Thousand Dollars, Ten Thousand dollars for each of the boys, Rob Winslow and Jack-and purchase such amount of 20 year double indemnity, sick benefit, life insurance on the lives of Rob Winslow and Jack-as may be determined can be carried from the income from the investment; That in handling this, she solicit the services of Chas. Whedbee, if living, and two other persons whom she and my children may select. That this investment be made permanent and fixed-to be carried over the period of twenty years. That the invested capital and value of the insurance to be turned over in equal amounts-to Rob Winslow and Jack (or their heirs) at the end of the twenty year period.

(d) That one thousand dollars be safely invested and the proceeds from same-for a period of ten years-be turned over-as received-to the Chairman of the Board of Stewards of the Center Hill Methodist Episcopal Church, South. That this bequest may be continued-at the discretion of my heirs.

(e) That my sister, Mary E. Brinn, if she survives me, shall be cared for-with all the comforts of home-as a member of the family-and given burial at her death in a manner satisfactory to surviving members of the family.

6. In the event of my wife's death before she may have fully executed my request, I desire that my estate be equally divided between my four children-as hereinbefore specified, and that all my request be carried out-and, that, in the event of my wife's not having made other arrangements, my son, Preston be made administrator, or executor, with authority to carry out my wishes. That no bond be required of him."

The paragraphs are numbered by the court for convenience of reference.

The court below, after finding certain facts, entered judgment as follows:

"Upon the foregoing findings of fact by the Court and admissions contained in the pleadings, the Court is of the opinion and doth adjudge that, looking at the will as a whole in order to ascertain the intent of the testator, Lilliebelle E. Brinn, wife of said testator, is the holder of a life estate, or estate durante viduatate in and to the real and personal property of the testator, which terminates as to a four-fifths interest therein, upon her marriage, and is entitled to the income therefrom, subject to the other provisions of said will, and that upon her remarriage she 'retains' a life estate in and to one-fifth interest in and to said property and the income from said one-fifth interest; that, while in its usual acceptation the word 'request' is merely precatory and is not, standing alone, sufficient to create a trust, the use of the word in this will at the beginning and in the concluding paragraph, clearly indicates it to be the intention of the testator that the estate be impressed with a trust charged with the creation and maintenance of an insurance benefit for the sons Robert Winslow Brinn, and Jack Brinn, as set out therein, and charged with the expense necessary for the care, support and maintenance of testator's sister, Mary E. Brinn, and her burial expense, and with an investment for ten years for the benefit of the Methodist Church referred to in said Will; that in handling said estate 'as she chooses' the said Lilliebelle E. Brinn is a Trustee for the purpose of carrying out the provisions of said will, invested with full discretion as to the way and manner in which she may see fit to handle the same, subject to the control of the Court from time to time as necessity for effectuating transactions affecting said estate may arise, her compensation as such to be determined by the Court; that she has no power or authority to sell and convey any of the property of said estate except subject to the control of the Court; that in the event of the remarriage of the said Lilliebelle Brinn, she 'retains' for life a one-fifth interest in said estate and the other four-fifths interest is to be divided equally between the four children named in said Will; and that subject to the charges imposed upon said estate as herein set forth, the said Lilliebelle Brinn is entitled to the income from the whole thereof during widowhood, and to the income from one-fifth interest thereof in the event of remarriage, for the remainder of her life, such one-fifth interest to be equally divided between said children upon her death."

Both the plaintiff and the defendants excepted and appealed.

Whedbee & Whedbee, of Hertford, for plaintiff.

Chas. E. Johnson, of Hertford, for defendants.

BARNHILL Justice.

What is the estate of the widow in the property of the testator? Is such estate as she took impressed with a trust? These are the questions presented to us for determination.

Formerly the rule in England was that whenever property was given coupled with expressions of "request, desire or recommendation," that the person to whom it is given will use or dispose of the same for the benefit of another, the donee will be considered a trustee for the purpose indicated by the donor. This was so held, even when the language of the gift, unaccompanied by the words of "request," etc., was absolute in its nature. This rule was followed by earlier American decisions. Thus, precatory words were given an arbitrary meaning, and force imperative in nature. This doctrine has been modified, both by the English and American courts, so that now in this and other jurisdictions precatory words are interpreted in...