Heefner v. Thornton

• Court: North Carolina Supreme Court
• Writing for the Court: WINBORNE, Justice
• Citation: Heefner v. Thornton, 216 N.C. 702, 6 S.E.2d 506 (N.C. 1940)
• Decision Date: 03 January 1940
• Docket Number: No. 740.,740.
• Parties: HEEFNER et al. v. THORNTON et al.

6 S.E.2d 506

216 N.C. 702

HEEFNER et al.

v.THORNTON et al.

No. 740.

Supreme Court of North Carolina.

Jan. 3, 1940.

Appeal from Superior Court, Forsyth County; A. Hall Johnston, Special Judge.

Action by Edward S. Heefner, Jr., administrator with the will annexed of Jennie Mitchell Briggs, deceased, and others, against Ellen Barbour Thornton and others, for construction of the will of W. W. Briggs, deceased. From a decree for plaintiffs, Ellen Barbour Thornton and others appeal.

Affirmed.

Civil action for construction of will of W. W. Briggs, deceased.

The controversy arises on these portions of the will of W. W. Briggs:

"First: After the payment of my debts I bequeath and devise my entire estate of every nature and wherever situated to my wife, Jennie M. Briggs, with full and complete power to her to use, consume and dispose of the same absolutely as she shall see fit.

"Second: After the death of my wife I bequeath and devise whatever of my estate shall remain unconsumed and undisposed of by my said wife to my wife's nephew, Briggs Thornton, provided he shall be 25 years of age at the time of the death of my said wife. But if the said Briggs Thornton shall be under 25 years of age at the time of the death of my wife, then I bequeath and devise whatever of my estate shall remain unconsumed and undisposed of by my wife to Wachovia Bank and Trust Company, in trust for the following uses:

"(1) To invest and re-invest and keep the same invested in safe income-bearing securities or productive real estate and collect the income therefrom;

"(2) To apply the net income from this trust estate for the support and education of the said Briggs Thornton until he shall be 21 years of age, then pay over the net income to him monthly or quarterly, or as often as to my trustee shall seem best, until he shall be 25 years of age, and when he shall be 25 years of age close the trust by paying over, delivering and conveying to him the corpus of the said trust estate;

"(3) If the income from this trust shall not be sufficient adequately to support and educate the said Briggs Thornton, then I authorize my trustee, in the exercise of its sound discretion, to apply any part of the principal for that purpose."

"Third: If my wife shall predecease me, then I bequeath and devise my entire estate to Wachovia Bank and Trust Company, in trust for my wife's nephew, Briggs Thornton, according to the terms and conditions above set forth."

It is stipulated and agreed that no children were born of the marriage of W. W. Briggs and Jennie M. Briggs; that Briggs Thornton was taken into their home upon the death of his mother, a sister of Jennie M. Briggs, in March 1917, when he was five days old; that he lived with them until the death of W. W. Briggs and thereafter continued to live with Mrs. Briggs and that he was treated by W. W. Briggs as his own child.

It further appears that Briggs Thornton died intestate and without children, on 5 March, 1936; and that Jennie M: Briggs died 5 June, 1936, leaving a will in which she made certain specific bequests of personal property and then further provided: "Item Five: I bequeath and devise the residue of my estate of every nature and kind, and wherever situate, to the Wachovia Bank & Trust Company, of Winston Salem, North Carolina, in trust for the following uses: "

Upon hearing below the court was of opinion, as contended by plaintiff Edward S. Heefner, Jr., as the duly qualified and acting administrator, c.t.a., and his co-plaintiffs as all of the beneficiaries under the will of Jennie M. Briggs, except Briggs Thornton, that the will of W. W. Briggs bequeathed to Jennie M. Briggs absolutely all of the personal property which W. W. Briggs owned and possessed at his death and devised to her in fee simple all the real estate, including that in question here, of which he died seized and possessed; and that same should be administered in accordance therewith; and so adjudged and directed the administrator c.t.a. of Jennie M. Briggs to administer such property as the property of his testatrix.

Appellants, widow and brothers and sisters of Briggs Thornton, deceased, except to the judgment and appeal to Supreme Court and assign error.

J. A. Snow, of Pilot Mountain, and Fred M. Parrish, of Winston-Salem, for defendants appellants.

Manly, Hendren & Womble and W. P. Sandridge, all of Winston-Salem, for plaintiffs appellees.

WINBORNE, Justice.

This appeal raises for decision this question only:

Under the will of W. W. Briggs, after payment of his debts, did his wife, Jennie M. Briggs, take his "entire estate of every nature and wherever situated" absolutely and in fee simple, or did she...