Clement v. Whisnant

• Decision Date: 10 April 1935
• Docket Number: 381.
• Parties: 208 N.C. 167, 101 A.L.R. 698 v. WHISNANT et al. CLEMENT et al.
• Court: North Carolina Supreme Court

179 S.E. 430

208 N.C. 167, 101 A.L.R. 698

CLEMENT et al. v. WHISNANT et al.

No. 381.

Supreme Court of North Carolina

April 10, 1935

Appeal from Superior Court, Rowan County; Harding, Judge.

Suit by Hayden Clement and another, administrators c. t. a., d. b n., of the estate of Mrs. Frances Kelly Frercks, deceased against Mrs. Hope S. Whisnant and others. From the judgment defendant named and others appeal.

Reversed with directions.

Legacies to church for memorial organ and parish house held not to impose contractual obligation upon estate or to require priority of payment as debt of piety, where construction work had not been undertaken and estate was insufficient to pay all legacies.

Mrs. Frances Kelly Frercks died in May, 1931, leaving a last will and testament in which J. M. McCorkle was duly named as executor. The executor was required to give bond. At the time of the death of testatrix and the qualification of the executor, the value of the estate was $106,185.29. The will in items 2 and 3 thereof designated legacies in various amounts to various relatives, aggregating approximately $41,000. After specifying said legacies to relatives, the will declares: "If either or any of the foregoing relatives undertake to contest this will they shall forfeit all rights under this will. If there be any other relatives not named in this will, their names are omitted purposely." The will then proceeds to designate certain legacies for certain friends of testatrix, some of them living in Germany. The total amount of such legacies to friends was $6,300. The will then proceeds to designate and specify certain legacies for church and charity. The legacies for church and charity aggregate $54,000.

The legacies specified for St. Luke's Church for memorial pipe organ and the erection of a new parish house are $17,000, and the legacy specified for Patterson School for Boys is $7,000, making a total of $24,000 for St. Luke's Vestry and the Patterson School.

Capitulating the facts, the situation is this: Legacies for relatives and friends, first set up in the will, aggregate approximately $47,000. Legacies for St. Luke's Vestry and Patterson School, $24,000; legacies for general church and charity purposes, $30,000; total legacies specified in the will, $101,750.

The executor defaulted and misappropriated approximately $40,000. He was removed, and on September 26, 1933, the plaintiffs were appointed administrators, d. b. n., c. t. a., to administer the estate. At the time the plaintiffs qualified they received from the clerk of the superior court of Rowan county the sum of $69,677.78, representing the gross assets of the estate then available to pay legacies specified in the will. It appeared that this sum so available included the value of certain worthless stocks, and that certain costs of administration and of a caveat proceeding were unpaid. This shrinkage of assets plus such unpaid costs amounted to $10,000.

Thereupon plaintiffs brought the present suit against the legatees and other parties named in the will for a construction of the will and for the advice of the court in the distribution of the estate.

From judgment rendered, the relatives and St. Luke's Episcopal Church appealed to the Supreme Court.

Pharr & Bell, of Charlotte, for personal legatees.

Charles Price and Lee Overman Gregory, both of Salisbury, for St. Luke's Vestry.

Taliaferro & Clarkson and James O. Moore, all of Charlotte, for Protestant Episcopal Diocese of North Carolina.

Hamilton C. Jones, of Charlotte, for Thompson Orphanage.

BROGDEN Justice.

The testatrix in her will gave to relatives and friends legacies aggregating approximately $47,000. She then gave to the vestry of St. Luke's Episcopal Church, of which she was a member, $17,000 for a new parish house and a memorial pipe organ. She also gave to the Patterson School for Boys $7,000. She gave substantial legacies to the Protestant Episcopal Diocese, the Thompson Orphanage, the Rowan County Welfare Department and Valle Crucis School for Girls, aggregating $30,000. Shrinkage of value of assets and the cost of administration aggregated $10,000. The executor misappropriated $40,000. The result is that there is now approximately $59,000 in hand or available to pay $101,000 of legacies and bequests.

After specifying all the legacies and bequests, and in the latter part of the will, immediately before that portion appointing an executor, the testatrix used the following language: "If after paying off and discharging all of the bequests and legacies, and paying all the costs of executing this my will, there should be a deficit, I direct my Executor and Trustee to divide said deficit pro rata among the several bequests I have made to Church and Charity, and deduct the same from these; excepting, however, from said deductions, the bequests to St. Luke's Church for a Memorial Pipe Organ, the bequests toward the erection of a new Parish House and the Memorial Bequest to the Patterson School for Boys at Legerwood, N. C."

The interpretation of the foregoing clause is the determinative question of law in the case. Three theories have been advanced by the parties. First, the theory advanced by the personal legatees and friends of the deceased is that the testatrix intended to insert in the above-quoted clause from the will in line one and before the word "bequests" the word "personal." These parties further assert that the controverted clause of the will creates three classes of beneficiaries and establishes a priority of payment as follows: (a) Relatives and friends; (b) St. Luke's Vestry for the pipe organ and parish house and Patterson School for Boys; (c) all other church and charity bequests, including the Thompson Orphanage, the Diocese, County Welfare, etc.

That is to say, that in the event there was not enough money to pay the bequests and legacies, then the relatives and friends should be paid in full, and thereafter St. Luke's Vestry and Patterson School for Boys should be paid in full, and the balance, if any, distributed pro rata among all bequests to other general, church and charity activities specified in the will.

The second theory is that advanced by the Vestry of St Luke's Episcopal Church, which contends that, as the executrix gave to the Vestry of St. Luke's Church the sum...