Haywood v. Rigsbee

• Court: North Carolina Supreme Court
• Writing for the Court: SCHENCK, Justice.
• Citation: Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102 (N.C. 1935)
• Decision Date: 28 January 1935
• Docket Number: 774.
• Parties: HAYWOOD et al. v. RIGSBEE et al.

178 S.E. 102

207 N.C. 684

HAYWOOD et al. v. RIGSBEE et al.

No. 774.

Supreme Court of North Carolina

January 28, 1935

Appeal from Superior Court, Durham County; Cranmer, Judge.

Action by Mrs. Zoa L. Haywood and others against R. H. Rigsbee and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Under will creating trust to be closed 30 years after testator's death by equal distribution of fund among "my children and their issue," testator's living children 30 years after testator's death held entitled to share trust equally where testator's deceased children left no issue, in view of whole will indicating intention to treat testator's children equally.

This case was heard before a referee upon the following agreed statement of facts, to wit:

"1. That Atlas M. Rigsbee died a citizen and resident of the City and County of Durham, on the 29th day of November 1903.

2. That Atlas M. Rigsbee left a last will and testament dated the 7th day of August, 1893, which is duly and regularly probated in the office of the Clerk of the Superior Court of Durham County, in Book of Wills B, pages 35-44, which said will was duly probated on the 7th day of December, 1903; that there was no codicil to the said will.

3. That Atlas M. Rigsbee was the husband of Rowena Rigsbee who died on the 30th day of January, 1921.

4. That on the 7th day of August, 1893 (the date of the execution of the will in controversy), Atlas M. Rigsbee was the father of 8 children, all of whom were then living, whose names were as follows: Cora Rigsbee Markham, wife of Hugh P. Markham Robert H. Rigsbee; Mary E. Middleton, wife of Robert Lee Middleton; Zoa Rigsbee (now Zoa Rigsbee Haywood); Sallie A Rigsbee; William T. Rigsbee; Mattie T. Rigsbee (now Mattie R Bitting); Rosa Rigsbee (now Rosa Rigsbee Fulford).

5. Cora Rigsbee Markham died intestate and without issue prior to the death of Atlas M. Rigsbee, deceased, and her husband, Hugh P. Markham, died after the death of A. M. Rigsbee, deceased, and prior to November 29, 1933.

6. That William T. Rigsbee died prior to November 29, 1933, without ever having been married.

7. That at the termination of the thirty (30) year period of the trust, to-wit: on the 29th day of November, 1933, Atlas M. Rigsbee had the following living descendants: Six children (naming them), 12 grandchildren (naming them), and seven great grandchildren (naming them).

8. That all proper parties necessary for a construction of the terms of said will have been made parties to this proceeding and are duly before the Court.

9. The will of Atlas M. Rigsbee was prepared by W. W. Fuller, Esq., an attorney at law of Durham, North Carolina, in his own handwriting.

10. That the assets of the estate and trust of the late A. M. Rigsbee are considerably in excess of the liabilities of said estate and trust.

11. That Exhibit 'A' attached hereto is an exact copy of the last will and testament of A. M. Rigsbee, deceased."

"Exhibit 'A.'

Will of A. M. Rigsbee

In the name of God, amen:

I, Atlas M. Rigsbee, of the Town of Durham and County of Durham in the State of North Carolina; being sound both in body and mind but being also mindful of the uncertainty of life, and desiring to direct the disposition of my estate, do make, declare and publish this my last will and testament, hereby annulling and revoking all former wills by me made, that is to say:

I desire and direct that my body be decently buried in my section of the Cemetery of the Town of Durham, and that the stone or monument that shall mark my grave be selected by my wife and paid for by my executors.

Item First: I give, devise and bequeath unto my wife, Roena M. Rigsbee, my old home house on the corner of Green Street and Rigsbee Avenue, adjoining the lands of William Mangum, and one-half of the land from Green Street down Rigsbee Avenue to Watkins Street, that is to say from Green Street down to halfway between said Street and Watkins Street and so through the lot from Mangum's line to Rigsbee Avenue, and the dwelling house where I now live, on the North side of Corporation Street, and with said house, all the land together with all houses, fixtures, and improvements thereon, which I now own or may own at the time of my death, West of the line to be established as follows: Commencing at a point on the North side of Corporation Street in or near the bottom east of my garden, running North so as to strike the Southwest corner of a lot known as the Hunt Brick Yard lot on the Northern boundary of my land. All the above property in this item is to be held and owned by my wife Roena M. Rigsbee during her natural life, and at her death, I give and devise all of it in fee to my son, William T. Rigsbee and his heirs.

I devise and bequeath in fee to my wife, Roena M. Rigsbee, and her heirs all my plantations on the North Carolina Railroad near the cotton factory, and known as the 'Winnie or Albert Brassfield Place.' I also likewise give and bequeath to her absolutely, all my household and kitchen furniture, my bay horse Bob, and my clay bank horse with black mane and tail, my family carriage and my Tyson and Jones buggy. I also give and bequeath to her absolutely Ten Thousand Dollars in money, unless she realizes something from a policy of accident insurance which is by its term payable to her, in event of which such realization and recovery she is to have only so much of said Ten Thousand Dollars, added to what she receives under said policy the full sum of Ten Thousand Dollars, then this legacy is not to vest, but is to go as hereinafter provided for. I also bequeath and confirm to her such parts of two policies in the Brooklyn Life Insurance Company made partly payable to her, as she may be entitled to under the terms thereof.

Item Second: I give, devise and bequeath to my daughter Cora F. Markham and her heirs in fee the house on the corner of Rigsbee Avenue and Watkins Street in Durham where she now lives, and all the land between Watkins Street and up Rigsbee Avenue halfway to Green Street where the line provided for in the First Item is to be established; and I give and devise to said Cora F. Markham and her heirs in fee my James Vickers Plantation, and I give and devise to my said daughter, Cora F. Markham, during her natural life, the house and lot on the West side of Rigsbee Avenue, north of John W. Carlton's where she once lived, together with all my land in the rear and South of John W. Carlton's to Hunt Street and at her death I give and devise said last mentioned house and lands to her children if any are living at her death.

Item Third: I give and devise to my son Robert H. Rigsbee and his heirs in fee, all my land and houses lying North of Corporation Street and North of Garrard Alley, west of Strayhorn Alley and East of North Alley, and also a strip of land on the West side of North Alley North of Corporation Street from North Alley to a line to be established, commencing on Corporation Street East of my garden so as to strike the Southwest corner of the Hunt Brick Yard lot North of my land, said strip to run from Corporation Street to Hunt Brick Yard lot.

I also give and devise to my son Robert H. Rigsbee for and during his natural life time and at his death to his children if any living then, my three store houses and lots on the Northeast corner of Main and Mangum Streets in Durham, and the storehouses and lots on the East side of Mangum Street, South of the Parrish Building, also my storage house and lot in the rear of my Mangum Street stores, and half of the vacant land between said storage house and my Parrish stores, and the vacant land in rear of my Stores on Main Street, and half of the strip of vacant land owned by me and used as a passway between my houses and the Parrish Building.

Item Fourth: I give, and bequeath unto my daughter Mary E. Middleton and her heirs in fee the house and lot on the corner of Watkins Street and Rigsbee Avenue where she now lives. I also give and devise to my daughter, Mary E. Middleton for and during her natural life, and at her death to her children then living all the balance of my houses and lots on the West side of Rigsbee Avenue, South of Hunt Street on each side of the branch, and on Seminary Street West of Rigsbee Avenue.

Item Fifth: I give and devise unto my daughter Zoa Rigsbee and her heirs in fee, all my houses and lots lying East of Rigsbee Avenue and South of Seminary Street West of Mangum Street adjoining the lands of Thomas J. Rigsbee, and including the dwelling house and Baptist Female School house. I also give, and devise to my said daughter Zoa Rigsbee for and during her natural life and at her death to her children then living-I also give and devise (Sic) all my houses and lots on the East side of Mangum Street and North of Green Street adjoining the lands of W. H. Holloway and the Misses Hutchins.

Item Sixth: I give and devise to my daughter, Sallie A. Rigsbee and her heirs in fee all my land on the West side of Rigsbee Avenue, South of Corporation Street including all the tenant houses and lots on the East side of the branch, West of Corbett Street and the corner lot on the Southwest corner of Rigsbee Avenue and Corporation Street back to a line as shown on a plat of said land and to the lot devised to Cora F. Markham by this will.

I also give and devise to my said daughter Sallie A. Rigsbee for and during her natural life and at her death to her children then living, all my houses and lots East of Rigsbee Avenue and South of Hunt Street and North of Seminary Street on each side of the branch; and the store houses and lots South of the First Baptist Church, known as the Racket corner, on the West side of Mangum Street.

Item Seventh: I give and devise unto my son, William...