First Union Nat. Bank of N. C. v. Bryant, 162

• Decision Date: 02 May 1962
• Docket Number: No. 162,162
• Citation: 257 N.C. 42,125 S.E.2d 291
• Court: North Carolina Supreme Court
• Parties: FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Executor of the Estate of Maud Rankin Wales, and Sarah Wales Bryant v. Leo Heartt BRYANT, Jr.; Montford Wales Bryant and Leo Heartt Bryant, III, minors; Margaret Rankin Rhodes; Winnifred Rankin Hunsucker; James Thomas Rankin; and Monica Montgomery Rankin, a minor; and the unborn children of Sarah Wales Bryant.

Page 291

125 S.E.2d 291

257 N.C. 42

FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Executor of the Estate of Maud Rankin Wales, and Sarah Wales Bryant v. Leo Heartt BRYANT, Jr.; Montford Wales Bryant and Leo Heartt Bryant, III, minors; Margaret Rankin Rhodes; Winnifred Rankin Hunsucker; James Thomas Rankin; and Monica Montgomery Rankin, a minor; and the unborn children of Sarah Wales Bryant.

No. 162

Supreme Court of North Carolina.

May 2, 1962

Mullen, Holland & Cooke, Gastonia, for plaintiff-appellant and for plaintiff-appellee.

Grady B. Stott, Gastonia, guardian ad litem for appellees Montford Wales Bryant and Leo Heartt Bryant, III, in pro. per.

Verne E. Shive, Gastonia, guardian ad litem for appellees, the unborn children of Sarah Wales Bryant, in pro. per.

James B. Garland, Gastonia, guardian ad litem for appellee Monica Montgomery Rankin, in pro. per.

Garland & Eck, Gastonia, for appellees Margaret Rankin Rhodes, Winnifred Rankin Hunsucker and James Thomas Rankin.

DENNY, Chief Justice.

The only exception and assignment of error is to the judgment. Therefore, unless error appears on the face of the record proper, or the findings of fact are insufficient to support the judgment entered, the judgment will be affirmed. Milwaukee Insurance Co. v. McLean Trucking Co., 256 N.C. 721, 125 S.E.2d 25; Wachovia Bank & Trust Co. v. Buchan, 256 N.C. 142, 123 S.E.2d 489; Webb v. Gaskins, 255 N.C. 281, 121 S.E.2d 564; Goldsboro v. Atlantic Coast Line RR. Co., 246 N.C. 101, 97 S.E. 2d 486.

It is adjudged in the judgment entered in the court below and provided in the family settlement agreement incorporated therein that Sarah Wales Bryant is the owner in fee simple of all the real estate owned by Maud Rankin Wales at her death.

The testatrix in her will devised to Sarah Wales Bryant a life estate only in her real property. There being no devise of the remainder, and the will having no residuary clause, the remainder in said real property passed as undevised property under the law of intestacy to Sarah Wales Bryant, the only child of the testatrix. Williamson v. Williamson, 232 N.C. 54, 59 S.E.2d 214. The only contingency that could possibly have given Margaret Rankin Rhodes, Winnifred Rankin Hunsucker, James Thomas Rankin, and Monica Montgomery Rankin an interest in the real estate of the testatrix never occurred, since Sarah Wales Bryant survived her mother, the testatrix.

Therefore, we concur in the judgment entered below with respect to the title of the real estate of which the testatrix died seized. The life estate and remainder having become vested in Sarah Wales Bryant, she is the fee simple owner of said real estate. Lee v. Lee, 216 N.C. 349, 4 S.E.2d 880; Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853.

The remaining question for determination is whether or not the children, in esse and unborn, of Sarah Wales Bryant have been properly protected under the terms of the family settlement agreement.

The testatrix provided for the disposition of the major portion of her estate in the following language: 'Of the remaining stocks that I own, I want half of them to go to Sarah Wales Bryant (Mrs. Leo Heartt Bryant, Jr.) for her life and half of them to be divided equally between her children. I want one-half of these stocks to be given them when they are 21 years old and one-half when they are 30 years old. Unless Sarah Wales Bryant (Mrs. Leo Heartt Bryant, Jr.) needs the income from these stocks very badly, the dividends from these stocks are to be reinvested from the date of my death and held until the children reach the age of 21 years.' This provision was the chief source of the confusion and uncertainty which led to the family settlement agreement.

Under the bequest of one-half the remaining stocks to Sarah Wales Bryant for her life, without any disposition or bequest of said stocks to become effective upon the death of Sarah Wales Bryant, it would seem that Sarah Wales Bryant, under the statute of distribution, became the sole owner thereof upon the death of the testatrix. However, under the family settlement agreement, these stocks are put in trust and Sarah Wales Bryant will only get the income therefrom with the provision that the Trustee may pay to her so much of the principal of said trust as the Trustee in its sole discretion deems necessary to meet any emergency affecting her health or welfare. At the death of Sarah Wales Bryant, the principal remaining in the trust created for her benefit goes to her children. If she has no surviving children or issue of her children surviving at her death, then the assets of the trust will be distributed to the heirs of Sarah Wales Bryant in accordance with the then intestate laws of the State of North Carolina.

Under the terms of the will of Maud Rankin Wales, it is doubtful that any child born to Sarah Wales Bryant after the death of the testatrix would share in the bequest of the stocks to the children of Sarah Wales Bryant. Other provisions in the will, however, indicate an intent on the part of the testatrix that any child or children born to Sarah Wales Bryant after the death of the testatrix, should share in the estate. But, under the terms of Trust B, set up in the family settlement agreement, any child born to Sarah Wales Bryant on or before 1 July 1981, will share in the bequest of these stocks and any other assets included in the trust.

While there is a possibility that a child or children may be born to Sarah Wales Bryant after 1 July 1981, it is a mere possibility and not a probability. According to the record, Sarah Wales Bryant will be 53 years of age in 1981, and the possibility of her having a child after that time is so slight, as borne out by human experience, we will not disapprove the trust based on this mere possibility. Wachovia Bank & Trust Co. v. Allen, 232 N.C. 274, 60 S.E.2d 117; Strong's North Carolina Index, Vol. IV, Wills, Section 29, page 510, et seq.

We would have preferred for the discretion of the Trustee under Trust B, in making any disproportionate expenditure of the income of said trust on any one child, to have been limited to an emergency affecting the health of such child. However, since the children of Sarah Wales...