Ernul v. Ernul

• Decision Date: 10 March 1926
• Docket Number: 159.
• Citation: 132 S.E. 2,191 N.C. 347
• Parties: ERNUL v. ERNUL et al.
• Court: North Carolina Supreme Court

132 S.E. 2

191 N.C. 347

ERNUL v. ERNUL et al.

No. 159.

Supreme Court of North Carolina

March 10, 1926

Appeal from Superior Court, Craven County; W. M. Bond, Judge.

Controversy without action by W. C. Ernul against Rosa L. Ernul executrix of the estate of F. S. Ernul, deceased, and others. From the judgment, defendant named appeals. Modified and affirmed.

Relationship and setting of parties have bearing in determining intent of testator as to whether personal property directly bequeathed with remainder over should be paid.

Submission of controversy without action. Facts:

"(1) That W. C. Ernul is one of the children of F. S. Ernul named in the will of F. S. Ernul as hereinafter set out. And Mildred Nelson is the granddaughter of F. S. Ernul named in said will, and resides in the state of Illinois all other parties are residents of North Carolina.

(2) That F. S. Ernul died in Craven county on the 10th h day of May, 1923, leaving a last will and testament. The material items to be considered are:

'6. I give, bequeath and devise to my granddaughter Mildred Nelson, five thousand dollars; I appoint my wife, Rosa L. Ernul, guardian for Mildred Nelson, and if Mildred should die before she marries and has children her share of my estate go back to my children.'

'9. All other property I may have not disposed of, I want equally divided between my wife, W. C. Ernul, Mattie J. Robinson, Katherine Gaskins, Nancy Tuton and Mildred Nelson.'

(3) That the executrix therein named qualified on the 17th day of May, 1923, and is still acting.

(4) That Mildred Nelson named in items 6 and 9 of the will was a minor at the time of the death of the testator, and on June 15, 1923, Rosa L. Ernul, widow of the testator, qualified in the superior court of Craven county as guardian of the said Mildred Nelson, and is still acting.

(5) That the $5,000 bequeathed to Mildred Nelson in item 6 of the will has been paid over by Rosa L. Ernul, executrix, to Rosa L. Ernul, guardian of Mildred Nelson; and under the residuary clause, item 9 of the will, Rosa L. Ernul, executrix, has paid over to Rosa L. Ernul, guardian, the sum of $1,600; that upon the final settlement of the estate of F. S. Ernul, there will be several hundred dollars additional to be distributed under the residuary clause.

(6) That the guardian has paid to Mildred Nelson for her support and maintenance all income accrued upon the moneys in her hands and has paid the expenses of the guardianship, and the further sum of $426 from the principal under authority of an order of the court for necessary expenses incurred in a surgical operation upon Mildred Nelson.

(7) That Mildred Nelson is now of age and demands a settlement of the guardianship and the payment over to her of all sums in the hands of her guardian.

(8) That Mildred Nelson is unmarried and has no children.

(9) That W. C. Ernul, one of the children of F. S. Ernul, for himself and the other children of F. S. Ernul, contends that no part of the principal either under item 5 or item 9 of the will should be paid directly to Mildred Nelson, but that it should be paid into the hands of a trustee under bond, to pay to Mildred Nelson only the income until she marries and has children, and to preserve the principal to be paid over to the children of F. S. Ernul in the event that Mildred Nelson dies before she marries and has children.

The executrix and guardian prays the advice and guidance of the court upon the conflicting contentions of Mildred Nelson and the children of F. S. Ernul."

The court below rendered the following judgment:

"This cause coming on to be heard before his honor, W. M. Bond, J., upon a submission of controversy without action, and being heard upon the facts agreed: It is thereupon ordered, adjudged, and decreed that Mildred Nelson is entitled to the possession of the $5,000 bequeathed to her in item 6 of the will of F. S. Ernul, less any sums heretofore expended by the guardian from the principal, and that such balance be paid over to said Mildred Nelson, the guardian taking a receipt from her for the benefit of the children of F. S. Ernul; that the $1,600 paid to the guardian under the residuary clause of the will, together with any further sums distributable as Mildred Nelson's share under the residuary clause, be paid over to Rosa L. Ernul, the executrix, as trustee without bond, to hold and invest the same and pay the interest to Mildred Nelson until she shall marry and have children, and upon such happening to pay the entire sum to said Mildred Nelson; but if Mildred Nelson shall die without marrying and having children of such marriage, then to pay said sum over to the children of F. S. Ernul."

The only exception and assignment of error is to the judgment rendered. From the judgment, Rosa L. Ernul, executrix, appealed to the Supreme Court.

Guion & Guion, of Newbern, for appellant.

CLARKSON J.

The appellant in her brief says:

"This was a submission of controversy without action, for the construction of the will of F. S. Ernul, deceased, submitted at the October term, 1925, of Craven county superior court. Upon the submission, judgment was rendered by his honor, W. M. Bond, judge presiding, as set out in the record. The executrix, Rosa L. Ernul, appealed to the Supreme Court. Neither the plaintiff, W. C. Ernul, nor the appellant's codefendant, Mildred Nelson, are represented by counsel. The appellant, executrix, prays the judgment of the court for her protection in making settlement of the estate."

Ashe, J., in Alsbrook v. Reid, 89 N.C. 153, says:

"The former courts of equity entertained, and our superior courts still entertain applications for advice and instructions from executors and other trustees, as to the discharge of trusts confided to them, and incidentally thereto, the construction and legal effect of the instrument by which they are created. But the courts of equity never exercised this advisory jurisdiction when the estate devised is a legal one, and the question as to construction is purely legal. The jurisdiction is incident to that over trusts. Where there is no trust or trustee to be directed, the court of equity never takes jurisdiction." Commercial Nat. Bank v. Alexander, 125 S.E. 385, 188 N.C. 670.

We think appellant, under the facts disclosed in this case, is within her rights in asking advice.

"The plaintiff contends that all the money, both that bequeathed under item 6, and that bequeathed under item 9, should be held by the executrix as trustee, until such time as Mildred Nelson shall marry and have children, or shall die without having married and having children; or that if the money or any part of it is turned over to Mildred Nelson, she should be required to give bond to insure its safe-keeping, and contend that she is young and incompetent to preserve the money for the use of the remaindermen, and that she is a nonresident of the state."

In construing the present will, we are dealing with personal property. The general rule gathered from the authorities is stated in Burwell v. Bank, 118 S.E. 881, 186 N.C. 119, as follows:

"It is fully recognized that where real property is devised to one for life, remainder over, unless a contrary intent appears in the will, the life tenant is entitled to its possession and control during the continuance of the estate, subject always to its liability to creditors, under the provisions of law. And the same principle usually prevails as to direct bequest of personal property except where it is given as a residuary bequest to be enjoyed by persons in succession, etc., in which case the property is converted into money and the interest paid to the legatees during the existence of their respective estates. Bryan v. Harper 177 N.C. 309; Simmons v. Fleming 157 N.C. 389; In re Knowles 148 N.C. 461, 466; Britt v. Smith, 86 N.C. 305; Ritch v. Morris, 78 N.C. 377; Smith

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