Citizens Nat. Bank v. Corl
| Decision Date | 11 April 1945 |
| Docket Number | 378 |
| Citation | 33 S.E.2d 613,225 N.C. 96 |
| Parties | CITIZENS NAT. BANK v. CORL et al. |
| Court | North Carolina Supreme Court |
Proceeding under Declaratory Judgment Act to determine proper disposition of income arising from trust properties. G.S. s 1-255.
After the pleadings had been filed, the case was submitted to the court for final disposition on 'Facts Agreed'.
1. It appears that Joe Banks Corl married Olive Louise Rogers in Pickens, S. C., on August 7, 1921, and deserted her ten days thereafter. Criminal proceedings were instituted against the said Joe Banks Corl in South Carolina for non-support, and on December 5, 1922, his father, M. J. Corl, of Concord, N. C agreed in writing to pay to Olive Rogers Corl $40 per month 'during her life or until she remarries', on condition that she withdraw all criminal proceedings against Joe Banks Corl, and not institute any other criminal proceedings against him, and not resist any divorce proceedings which he might institute,--'to the faithful and full performance of which the said M. J. Corl does hereby bind himself, his heirs, executors, or administrators.'
2. It is deduced from the record that divorce proceedings were thereafter instituted by Joe Banks Corl, and that he later married Maude Smith.
3. On January 3, 1931, M. J. Corl died, leaving a last will and testament, the presently pertinent provisions of Item Eight being as follows:
'Eighth Inasmuch as my son, J. Banks Corl, has not developed such a sense of responsibility as in my judgment is requisite for the wise use of large properties and sums of money, I am compelled * * * to limit my testamentary provisions for his benefits to trust producing such income as I deem reasonable for his support and for the support of his family. Now therefore, in order to provide for the comfort of my said son, J. Banks Corl, and to secure to him an income for and during his natural life, I give and devise to the Carbarrus Bank & Trust Company * * * in trust for my said son, J. Banks Corl, the following real property * * * to have and to hold the same for and during the natural life of my said son, J. Banks Corl, with remainder to his legitimate children in fee simple. * * * Said trustee is hereby authorized and directed to pay the income therefrom in the following manner:
'1st--To pay all current and incidental expenses for the use and safety of the property * * * such as taxes, insurance, repairs, assessments, etc.
'2nd--To pay to Olive Louise Rodgers, * * * first wife of J. Banks Corl, the sum of Forty Dollars ($40.00) per month so long as she lives and does not remarry and no longer.
4. On August 9, 1934, Olive Rogers Corl brought suit in the Superior Court of Cabarrus County against the executor of the estate of M. J. Corl and the successor trustee under his will, for the monthly allowances which had accrued subsequent to the death of the testator, and obtained judgment therefor at the October Term, 1934, in which it was further ordered that the plaintiff, Olive Rogers Corl, recover '$40 on November 1st, 1934, and $40 on the first day of each succeeding month thereafter until the said plaintiff dies or remarries '. No appeal was taken from this judgment.
5. Thereafter, on October 7, 1940, Olive Rogers Corl instituted another action in the Superior Court of Cabarrus County to surcharge and falsify the trustee's account and to recover the accrued and unpaid amounts due on her prior judgment. All those interested in the trust were made parties, and the minor children of J. Banks Corl appeared by guardian ad litem. Judgment was rendered for the plaintiff in this action, and no appeal was taken therefrom. A number of payments have been made on this judgment.
6. J. Banks Corl died on August 22, 1942, leaving him surviving his widow, Maude Smith Corl, and two minor children, Marshall B. Corl, born March 3, 1926, and George F. Corl, born November 20, 1928, the minor children being represented herein by their duly appointed guardian ad litem.
7. Maude Smith Corl, surviving widow of J. Banks Corl, was married again on October 18, 1943.
8. The accumulated income from the trust estate since October 18, 1943, and now in the hands of the trustee, amounts to $1,331.73.
9. Olive Rogers Corl (styled Olive Louise Rodgers in the will of M. J. Corl) is the divorced wife of J. Banks Corl, and at the time of the institution of this proceeding on November 10, 1943, was living and had not remarried.
Upon the foregoing considerations, the trial court held:
A. That the trust created in Item 'Eighth' of the will of M. J. Corl, late of Cabarrus County, is a valid and active trust.
B. That 'upon the marriage of Maude Smith Corl on October 18, 1943', any and all interest of Olive Rogers Corl in the trust estate ceased.
C. That the entire rents, profits and income accruing from and after October 18, 1943, together with the corpus of the estate, are to be held by the trustee for the use and benefit of Marshall B. Corl and George F. Corl until March 3, 1947, at which time the trustee is directed to pay over to Marshall B. Corl one-half of the corpus and accumulated income freed from any trust; and thereafter the trustee is to hold the remaining one-half of the corpus and accumulated income of the trust estate for the use and benefit of George F. Corl until November 20, 1949, at which time the trustee is directed to pay over to George F. Corl all assets then in the trust estate, corpus and accumulated income, discharged from any trust.
From the judgment entered, Olive Rogers Corl appeals, assigning errors.
No counsel appearing for plaintiff.
L. E. Barnhardt, of Concord, and Julien D. Wyatt, of Pickens, S. Car., for defendant-appellant.
Hartsel & Hartsell, of Concord, for defendants-appellees.
We have here a second contest involving provisions of the will of M. J. Corl, late of Cabarrus County. For first controversy, see Corl v. Corl, 209 N.C. 7, 182 S.E. 725.
The question presently presented is whether the interest of Olive Rogers Corl in the trust estate has been cut short by the happening of events which brings into play other and later provisions of the will. The trial court answered in the affirmative. We are inclined to a different view.
The testator evidently wished his agreement with Olive Rogers Corl to be carried out according to its terms. He had enjoyed the satisfaction and peace of mind which it afforded during his lifetime, and had faithfully performed his engagements thereunder until his death. Notwithstanding the provision in the contract that it should be binding on 'his heirs, executors, or administrators', he did not leave it as an open charge against his estate. Provision was made in his will for its observance as the first claim against the income from the trust created 'for his (son's) support and for the support of his family', after payment of current expenses incident to the maintenance of the property.
The situation calls to mind a case within the experience of the writer, which is not reported, as it was concluded in the trial court: A father had become guaranty for his son's debts in order to relieve the immediate demands of pressing creditors. Later it was discovered that the son's liabilities were much larger than originally thought. The father was unable to meet the increased demands. Suit was brought to recover on the guaranty contract. When the father was being examined by his counsel, he was...
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