Finch v. Honeycutt
| Decision Date | 17 April 1957 |
| Docket Number | No. 106,106 |
| Citation | 97 S.E.2d 478,246 N.C. 91 |
| Parties | Ronald E.FINCH, Administrator with the will annexed of William C.Honeycutt, Deceased, v. Georgie Greer HONEYCUTT, Widow, William C.Honeycutt, Jr., a Minor, Naney Ann Honeycutt, a Minor, Judy Greer Honeycutt, a Minor, and Kester Waiton and Georgia Greer Honeycutt, Trustees under the Last Will and Testament of William C. Honeycutt, Deceased. |
| Court | North Carolina Supreme Court |
Harkins, Van Winkle, Walton & Buck, Asheville, for Georgia Greer Honeycutt, Widow and Kester Walton and Georgia Greer Honeycutt, Trustees.
John C. Cheesborough, Asheville, Earl J. Fowler, guardians ad litem for Unborn Persons.
The assignments of error based upon specific exceptions taken by the several appellants to conclusions of law made by the trial judge of Superior Court, and presented in this Court, challenge the correctness of the judgment from which appeal is taken in two basic aspects in holding: (1) That William C. Honeycutt, by his will, devised and bequeathed to his wife Georgia Greer Honeycutt one-half interest in all of the real and personal property of which he died seized and possessed; and (2) that William C. Honeycutt, by his will, did not create a legal and valid trust for the benefit of his three children in one-half of his property, and hence the children took such one-half without regard to trust provisions set out therein.
A careful consideration of the provisions of the will, in the light of applicable principles of law, leads to the conclusion that in the first such aspect the ruling is correct and proper, but that in the second such aspect the ruling is in error.
Pertinent to such aspects of the case in hand, the intent of the testator is the paramount consideration in the construction of his will.
'In searching for the intent of the testator, as expressed in the language used by him, we start with the presumption that one who makes a will is of disposing mind and memory and does not intend to die intestate as to any part of his property.' Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231, 232, where the subject is fully discussed. See also Jones v. Jones, 227 N.C. 424, 42 S.E.2d 620.
In the Ferguson case, supra, it is also stated that 'Even where a will is reasonably susceptible of two constructions, the one favorable to complete testacy, the other consistent with partial intestacy, in application of the presumption, the former construction will be adopted and the latter rejected.'
No particular form of expression is necessary to constitute a legal disposition of property. Hence, although apt legal words were not used and the language is inartificial, the courts will give effect to it where the intent is apparent. Even the form will be disregarded. Kerr v. Girdwood, 138 N.C. 473, 50 S.E. 852, 107 Am. St.Rep. 551
Moreover, the doctrine of devise or bequest by implication is well established in our law. Burcham v. Burcham, 219 N.C. 357, 13 S.E.2d 615. See also Burney v. Holloway, 225 N.C. 633, 36 S.E. 2d 5; Efird v. Efird, 234 N.C. 607, 68 S.E. 2d 279.
In the Burcham case, supra [219 N.C. 357, 13 S.E.2d 616], this statement of the principle is quoted with approval: "If a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express or formal words, the court may supply the defect by implication, and so mould the language of the testator as to carry into effect, so far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.'' 1 Underhill on Wills, Section 463.
True it is said in the Burney case, supra [225 N.C. 633, 36 S.E.2d 8],
Nevertheless, in the light of these principles, applied to the wording of the will of William C. Honeycutt here considered it is apparent that a gift by implication was effected of one-half of his estate to his wife, Georgia Greer Honeycutt. In the first sentence he refers to 'my estate' as being 'a community estate with my wife, Georgia Greer Honeycutt,' and that 'it has been held as such for several years when paying Fed. and State Income Tax.' Then the next sentence reads, 'Therefore it is my will that my half of my and her (wife) estate be given to my three children * * *,' and no mention is again made of the other half. Indeed, no devise or bequest otherwise is made to his wife. The conclusion is inescapable that he intended she should have one-half of his estate. And it will not be presumed that he intended to die partially intestate.
Therefore this Court holds that the ruling of the trial court in this aspect is proper, and should be affirmed.
Now as to whether the testator, William C. Honeycutt, by the language used in his will, created a legal and valid trust whereby the Trustees named are entitled to hold and to receive any property willed to his three minor children: The Statute of Uses, 27 Henry VIII, preserved in this State by G.S. § 41-7, merges the legal and equitable titles in the beneficiary of a passive trust, but the rule established by the statute does not apply to active trusts. Chinnis v. Cobb, 210 N.C. 104, 185 S.E. 638.
As to active trusts the legal title vests and remains in the trustee for the purpose of the trust. Fisher v. Fisher, 218 N.C. 42, 9 S.E.2d 493. See also Security National Bank v. Sternberger, 207 N.C. 811, 178 S.E. 595, 97 A.L.R. 720.
The distinction between a passive and...
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