Citizens' Bank v. Murray

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J. (after stating the facts as above).
• Citation: Citizens' Bank v. Murray, 175 N. C. 62, 94 S. E. 665 (N.C. 1917)
• Decision Date: 23 December 1917
• Docket Number: 551.
• Parties: CITIZENS' BANK v. MURRAY ET AL.

94 S.E. 665

175 N.C. 62

CITIZENS' BANK v. MURRAY ET AL.

No. 551.

Supreme Court of North Carolina

December 23, 1917

Appeal from Superior Court, Buncombe County; Lane, Judge.

Action by the Citizens' Bank against W. H. Murray and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Subject to rule that testator's intention shall govern, where estate is limited on contingency, time of which is not fixed date of testator's death will be adopted, unless will indicates another time was intended.

Civil action to obtain construction of a will heard before his honor, Henry B. Lane, judge presiding in the superior courts of Buncombe county. On the hearing, it was made to appear that George A. Murray had died resident in said county leaving a last will and testament, composed of an original and two codicils thereto, disposing of a large estate consisting of real and personal property, chiefly the latter and appointing plaintiff bank executor. Certain controversies having arisen as to the meaning of said will and codicils the present proceedings were instituted to obtain an authoritative construction of same, all of the parties in interest having been made defendants.

The said will made provision for the payment of various legacies and annuities, among others, one of $10,000 to W. H. Murray his son and heir, and an annuity of $600 per annum for his life. Another legacy of $1,000 is given to his brother, J. B. Murrell, of Rogersville, Tenn., and others of $2,000 each to the three children of said brother, to be paid after the death of the testator's sister, and an annuity of $300 for life, after the death of an aunt, Mrs. Hutchinson.

Having made these preliminary bequests and others, as stated, on matters more directly relevant, the will and first codicil are as follows:

"It is my will and desire that upon the death of any of the annuitants hereinbefore mentioned that such annuities shall be paid to the surviving annuitants, except in those cases where it has otherwise been hereinbefore provided. And upon the death of all the annuitants then it is my will and desire that all my property shall go to my son, W. H. Murray, his heirs, executors or administrators.

It may be that after my estate is put in shape and after paying the above bequests that the annuities can be increased in which case all annuities are to be increased pro rata accordingly.

I prefer that my stock in the Citizens' Bank and the Citizens' Lumber Company be held intact by my executor, and that the dividends be collected and used in the payment of the above mentioned bequests and annuities as long as the same continue to pay good dividends.

It is my will and desire that J. E. Fulgham be employed by my executor to co-operate with my son W. H. Murray, in closing up my lumber business, and to aid my executor in the sale of my Wesser Creek lands in Swain county, N. C., and my timber lands at Lone Star, S. C., or any other timber or timber lands that I may own, and that my son, W. H. Murray, and Mr. Fulgham, shall be paid a reasonable compensation for their services in doing said work, or at least that said Fulgham shall be employed to aid in closing out said lumber business and in the sale of said timber and timber lands so long as he and my said executor and my son, W. H. Murray, can agree.

As a part of my assets consist of notes secured by real estate, and as it will necessarily be many years, on account of the numerous annuitants, before my estate can be wound up, it is my will and desire that my executor shall collect so much money as will be necessary to meet the payments of the bequests and annuities herein provided for and shall sell and dispose of my real estate and personal property as it may deem advisable to do so, and after paying the bequests and annuities aforesaid then reinvest the funds by taking notes secured by real estate or discount good notes secured by real estate worth double the amount of the loan or invest the same in unquestionably good interest paying bonds or other good securities, but the loans or paper secured by deed in trust on good real estate as above are preferred.

I request of my son, W. H. Murray and enjoin upon him the duty of co-operating with my executor in looking after and preserving my estate, which ultimately goes to him and his heirs after the falling in of the annuities, and to see that the provisions of my will are fully carried out.

I hereby nominate, constitute and appoint the Citizens' Bank of Asheville, N. C., as executor of this my last will and testament, hereby revoking all former will and testaments. * * *

Codicil to my last will now in my private box at Citizens' Bank--copy in right hand drawer of my desk in envelope marked Mrs. A. M. Ross.

In the above mentioned will Veda Merrimon McFatridge, 122 W. 30th St., Indianapolis, was made an heir to the extent of $240.00 per...