Jones v. Fullbright

• Decision Date: 22 May 1929
• Docket Number: 537.
• Parties: JONES v. FULLBRIGHT et al.
• Court: North Carolina Supreme Court

148 S.E. 229

197 N.C. 274

JONES v. FULLBRIGHT et al.

No. 537.

Supreme Court of North Carolina

May 22, 1929

Appeal from Superior Court, Henderson County; Cameron F. MacRae Special Judge.

Action by Sallie H. Jones, administratrix c. t. a. of the last will and testament of S. V. Pickens, deceased, and as Commissioner appointed by the court, against C. S. Fullbright and Michael Schenck, executors of the last will and testament of Cornelia S. Pickens, deceased. Judgment for plaintiff, and defendants appeal. Affirmed.

Will bequeathing property to wife for life, with power of disposition and directions to sell proceeds remaining at her death, gave life estate only.

Will devising property to wife for life with power of disposition and direction for sale of property remaining at her death held not to permit testamentary disposition of property by widow.

The material facts are admitted. S. V. Pickens died on June 19 1919, leaving a will in which he appointed as executrix his wife, Cornelia S. Pickens, who duly qualified as such on July 28, 1919. On April 26, 1919, S. V. Pickens deposited in the Citizens' National Bank of Hendersonville the sum of $13,194.66, for which he received from the bank four certificates of deposit in the respective sums of $6,679.66 $5,315, $1,000, and $200. Each certificate was in the following form:

"The Citizens National Bank of Hendersonville, N. C.

"Hendersonville, N. C., Apr. 26, 1919.

"The Citizens National Bank: This is to certify that S. V. Pickens has deposited in this bank Six Thousand, Six Hundred Seventy-Nine Dollars Sixty-Six cents, $6,679.66. Not subject to check. Payable to the order of Self or Cornelia S. Pickens, his wife, on the return of this certificate properly endorsed with interest at the rate of 4 per cent per annum if left on deposit three months or longer. Interest to cease after twelve months unless renewed.

"No. 3424 C. S. Fullbright, Cashier."

Cornelia S. Pickens, as executrix, collected from the bank $13,332.50, the face of the certificates with interest. She claimed one-half this amount ($6,666.25) as her individual property because the certificates were "payable to the order of Self or Cornelia S. Pickens, his wife," and charged herself as executrix with the other half. Out of the half with which she thus charged herself she paid claims against her husband's estate, the costs of administration, $1,000 for the gravestone, $50 as a legacy to John C. Pickens, aggregating $3,819.33, leaving of this fund $2,846.42. She placed this balance together with $1,016.66, which she had received from other securities, with the $6,666.25 which she claimed independently of the will, making a total of $10,529.33. During her lifetime she used all this sum except $3,200, with which she bought 16 shares of the capital stock of the Citizens' National Bank of Hendersonville, at $200 a share, issued in her name.

At the time of his death S. V. Pickens owned 16 shares of the capital stock of this bank, and Mrs. Pickens as executrix caused these shares to be transferred from his name to hers on December 13, 1921. The estate of S. V. Pickens has no other personal property.

Cornelia S. Pickens died January 7, 1928, leaving a will in which the defendants were named as her executors. They qualified on January 10, 1928. In her will she devised and bequeathed real and personal property. The plaintiff qualified as administratrix c. t. a. of S. V. Pickens on November 14, 1928, and was appointed commissioner on January 19, 1929, pursuant to a provision in the fourth item of his will. The fourth and fifth paragraphs of his will are as follows:

"4th. I hereby give and bequeath unto my dear wife Cornelia S. Pickens for her natural life all my personal property of whatsoever kind, not specifically and otherwise disposed of in this will, either hereinbefore or hereafter; to be used and disposed of by her as she may see fit during life, but whatever of this said personal property bequest, the proceeds thereof & of the cash hereinafter specifically given her, on hand at her death and the proceeds of the same not disposed of by her before death, shall be collected and sold for cash by a Commissioner appointed by the Superior Court of Henderson County without unnecessary delay and after payment of the necessary expenses pay the balance one half to the heirs of my said present wife and one half to the heirs of my sisters Rachel Wild and Elizabeth Wild--both dead --1/2 to each set.

"5th. I also give and bequeath to my dear wife Cornelia S. Pickens of the cash on hand and in the banks the sum of Eight Thousand Dollars to include the bal of $1,000 due on the Hurt mortgage and note in which she is named as a party and as a survivor owns it. The cost of stone for grave to be credited on this bequest to her. She my said wife Cornelia S. Pickens accepts the gifts, bequests etc., contained in this will with all its conditions in lieu of and in full satisfaction of dower and all other claims by reason of our relation as man and wife not specified."

The plaintiff contends that the bank stock belongs to the estate of S. V. Pickens, and the defendants contend that it belongs to the estate of Cornelia S. Pickens. Judge MacRae held that the plaintiff in her capacity as executrix and commissioner is the owner of the 32 shares of the capital stock of the Citizens' National Bank of Hendersonville and is entitled to recover them from the defendants. The defendants excepted and appealed.

G. H. Valentine, of Hendersonville, for appellants.

Shipman & Arledge, of Hendersonville, for appellee.

ADAMS J.

The ultimate question is whether the title to the 32 shares of stock in the Citizens' National Bank of Hendersonville is in the plaintiff as the representative of S. V. Pickens or in the defendants as the representatives of his wife. The answer depends upon the interpretation of the testator's will and the legal significance of the certificates of deposit.

The bank certified that S. V. Pickens had deposited the money and that it was ""payable to the order of Self or Cornelia S. Pickens, his wife." The defendants say (1) that in effect the deposits were made in the names of both the husband and the wife, were payable to either, and upon the death of the husband were payable to the wife without regard to any provision in the husband's will; or (2), if this position is unsound, that the word "or" should be construed to mean "and," thereby giving to the wife a one-half interest in all the deposits.

The appellants cite C. S. § 230, as supporting their first contention; but this section applies only when the deposit is made "in the names of two persons, payable to either, or payable to either or the survivor." The certificates show that the deposits were made, not in the names of two persons, but in the name of S. V. Pickens only. Of more direct interest to the appellants is the question whether the subsequent clause in the certificates converts the deposits into a gift, in whole or in part, to the depositor's wife. S. V. Pickens having made the deposit in his own name is presumed, in the absence of contradictory or inconsistent evidence, to be the owner of the money. It remained his unless his wife obtained title to it or to a part of it by trust, gift, or bequest. It is not contended that a trust was created, but that the depositor intended the certificates, treated independently of his will, as a gift inter vivos to his wife.

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