Commercial Nat. Bank of Charlotte v. Misenheimer
| Decision Date | 28 April 1937 |
| Docket Number | 522. |
| Citation | 191 S.E. 14 |
| Parties | 211 N.C. 519, 110 A.L.R. 1310 v. MISENHEIMER et al. COMMERCIAL NAT. BANK OF CHARLOTTE |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; G. V. Cowper Special Judge.
Action by the Commercial National Bank of Charlotte, North Carolina executor of the last will and testament of Thomas M Misenheimer, deceased, against Charles A. Misenheimer and J J. Misenheimer, for the construction and interpretation of the will. From the judgment, defendant J. J. Misenheimer appeals.
Affirmed.
Provision in will that half of life insurance proceeds be applied to liens on land which testator and devisee owned in common held to authorize construction that devisees should take land subject to such liens and pay remainder thereof themselves.
This was an action instituted by the plaintiff, executor of Thomas M. Misenheimer, deceased, for the construction and interpretation of the will of the testator, who died January 4, 1935. The defendants are the testator's brothers, next of kin, and the sole devisees under his will.
The provisions of the will referred to are as follows:
"Item I. I direct my executor, hereinafter named, to pay all of my just debts out of the first money that comes into its hands.
Item II. I bequeath one-half of my life insurance to apply to the indebtedness of the estate which my brother Charlie and I, jointly, own. The other one-half of my life insurance is to be divided equally between my brothers, Charlie and Jay. (Referring to Charles A. Misenheimer and J. J. Misenheimer).
Item III. To my brother Jay I devise and bequeath my interest in the property known as the Fifth Street property, at 305 West Fifth Street; and also to my brother Jay I devise and bequeath one-third interest in the property at 206 North Tryon Street.
Item IV. To my brother Jay I give and bequeath my automobile and my saddle horse.
Item V. I give, devise and bequeath to my brother, Charlie A. Misenheimer, the remainder of my estate, absolutely.
Item VI. I nominate, constitute and appoint the Commercial National Bank of Charlotte, North Carolina, a corporation chartered under the laws of the United States of America, as executor of this my last will according to the true intent and meaning thereof, with full powers to pledge, mortgage, sell at either public or private sale, dispose of, invest, reinvest and otherwise deal with all or any part of my property and estate for the purpose of carrying out the terms and provisions of this will."
Pending the action, Harding, J., made an order June 25, 1935, authorizing the executor, among other things, to collect one-half the rents from devised real estate, to keep separate account, and to pay therefrom the pro rata share of the testator's estate for repairs, taxes, insurance, and interest or principal of mortgage indebtedness. To this order appellant preserved his exception.
When the cause came on to be heard in October, 1936, jury trial was waived, and it was agreed that the court should find the facts and render judgment in accordance with his conclusions therefrom.
A statement of the facts found by the court may be briefly summarized as follows: At the time of the death of the testator there were in force upon his life four policies of life insurance in the sum of $5,000 each, two of said policies payable to defendant, Charles A. Misenheimer, as sole beneficiary, and two policies payable to the testator's estate. About four days prior to testator's death, at his request, Charles E. Barnhardt, a relative, brought to him from testator's office certain papers. These included the four insurance policies and a paper in testator's handwriting. The paper writing was a tentative draft of his will (substantially in same form as later executed and hereinbefore quoted), and at the top of the paper appeared the words and figures following: The testator delivered the four policies and the paper to Barnhardt, who placed the policies in his safe and handed the paper to an attorney for drafting the will in legal form. Upon the execution of the will, it also was placed in Barnhardt's safe.
After the death of the testator the plaintiff executor collected from the insurance company approximately $10,000, the amount of the two policies payable to the estate, and defendant, Charles A. Misenheimer, collected the amount due under the two policies which were payable to said Charles A. Misenheimer as beneficiary.
At the time of his death, the testator and defendant, Charles A. Misenheimer, owned as tenants in common of equal share, subject to encumbrances, four tracts of land described as (1) Crab Orchard township farm; (2) Charlotte and Sharon township farm; (3) Fifth street property; and (4) North Tryon street property. These parcels of real property were acquired by the testator and Charles A. Misenheimer subject to prior deeds of trust, amounting at testator's death to $10,000 on the Charlotte and Sharon Township farm, $6,000 on Fifth street property, and $27,500 on North Tryon street property. By a paper writing, duly executed, the testator and defendant Charles A. Misenheimer agreed to be personally bound for the amounts secured by the said deeds of trust and to release the estates of those from whom the lands were acquired. The testator left personal property sufficient in value to pay all personal debts of the testator exclusive of those secured by deeds of trust on the real property.
From the facts found the court below decided, and so adjudged, that the testator's will did not include or dispose of the two policies of life insurance in which defendant Charles A. Misenheimer was named as sole beneficiary, and that the will included and disposed of only the policies, and proceeds thereof, which were payable to the estate of the testator. And that of the sum received as proceeds of the two last-mentioned policies, one-half should be applied towards the payment, proportionally, as credits on the debts secured by the deeds of trust on the lands, and one-half thereof divided equally between the defendants, "provided and to the extent such amount is not required by the executor for paying debts of testator and cost of administration." It was further adjudged that defendant J. J. Misenheimer should take the one-half interest of the testator in the Fifth street property, and one-third undivided interest in the North Tryon street property, "subject to the balance due upon the mortgage debts outstanding against same after the application upon such mortgage debts of that portion of the insurance fund properly applicable thereto"; and that defendant Charles A. Misenheimer should, as residuary devisee, take the remaining real estate of the testator subject to the mortgage debts thereon remaining after application of insurance money as aforesaid.
It was further decreed that the plaintiff as commissioner be authorized to sell, free of encumbrance, at private sale subject to confirmation, the lands designated as second, third, and fourth tracts, and apply the net proceeds respectively to the satisfaction of the deeds of trust thereon; one-half of the...
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