Kale v. Forrest

• Citation: 178 S.E.2d 622,278 N.C. 1
• Decision Date: 29 January 1971
• Docket Number: No. 58,58
• Court: North Carolina Supreme Court
• Parties: Thomas L. KALE v. Frances Kale FORREST and Richard B. Kale, Sr., Individually and as Executors of the Last Will and Testament of Russell H. Kale, Sr., Russell H. Kale, Jr., Trudy Lee Kale, Theresa Lynn Kale, Tina Louise Kale, Tracey Kale, Taren Leigh Kale, Richard B. Kale, Jr., Marjorie Sym Kale and Joseph Turner Forrest, Jr., and John H. Vernon, Guardian ad litem.

Page 622

178 S.E.2d 622

278 N.C. 1

Thomas L. KALE v. Frances Kale FORREST and Richard B. Kale, Sr., Individually and as Executors of the Last Will and Testament of Russell H. Kale, Sr., Russell H. Kale, Jr., Trudy Lee Kale, Theresa Lynn Kale, Tina Louise Kale, Tracey Kale, Taren Leigh Kale Richard B. Kale, Jr., Marjorie Sym Kale and Joseph Turner Forrest, Jr., and John H. Vernon, Guardian ad litem.

No. 58.

Supreme Court of North Carolina.

Jan. 29, 1971.

Ross, Wood & Dodge, by Harold T. Dodge, Graham, for plaintiff-appellant.

Hofler, Mount & White, by Lillard H. Mount and Richard M. Hutson, III, Durham for defendant-appellee Frances Kale Forrest.

Aycock, LaRoque, Allen, Cheek & Hines by C. B. Aycock, Kinston, for defendant-appellee Russell H. Kale, Jr.

BRANCH, Justice.

We first consider plaintiff appellant's contention that the trial court erred in determining that the $25,000 used to fund the educational bequest for testator's granddaughters shall be taken from the one-fourth share of Thomas L. Kale in the estate of Russell Henderson Kale, Sr.

This question involves specifically that portion of testator's will which states: '* * * $25,000.00 shall be taken from my estate for the college education of daughters of Thomas Kale, Trudy Lee Kale, Teresa Lyn Kale, Tina Louise Kale, Tracey Kale and Taren Leigh Kale. Any moneys not used for their education shall be held and earnings given to Thomas L. Kale.'

We quote the trial judge's Findings of Fact, Conclusions of Law, and the portion of the judgment pertinent to this question:

CONCLUSIONS OF LAW ...... ISSUE V.

'1. The intent of the testator was to establish a $25,000.00 educational bequest for his granddaughters, the children of Thomas L. Kale.

2. The testator had already disposed of 3/4th of his estate, prior to the $25,000.00 educational bequest.

3. The testator bequeathed any remainder in the education trust to Thomas L. Kale under the terms of the trust created for his benefit.

4. The testator allowed Thomas L. Kale to draw $1,000.00 annually from his trust after age 60.

5. It was the intent of the testator, Russell H. Kale, Sr., that the $25,000.00 used to fund the educational bequest of the children of Thomas L. Kale be taken from the 1/4th share of Thomas L. Kale in the estate of Russell H. Kale, Sr.'

'* * * IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

ISSUE V.

'The $25,000.00 used to fund the education bequest for Trudy Lee Kale, Theresa Lyn Kale, Tina Louise Kale, Tracey Kale, and Taren Leigh Kale, shall be taken from the 1/4 share of Thomas L. Kale in the Estate of Russell H. Kale, Sr.'

Appellant contends that the words 'shall be taken from my estate' clearly created a general legacy chargeable upon the testator's personal estate. He argues that this language is so plain and obvious that the words must be taken to mean exactly what they say and that there is therefore no necessity for judicial construction. Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205. However, an examination of this item of the will reveals that the language does not clearly express testator's intent and purpose as to whether the $25,000.00 educational bequest should be taken from the share of plaintiff Thomas L. Kale or from the general funds of the estate. We must therefore ascertain the intent of the testator when he made the will. Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246.

The intent of the testator is his will, and such intent as gathered from its four corners must be given effect unless it is contrary to some rule of law or is in conflict with public policy. McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857; In re Will of Wilson, 260 N.C. 482, 133 S.E.2d 189; Poindexter v. Trust Co., 258 N.C. 371, 128 S.E.2d 867.

The intent is ascertained, if possible, from the testator's language and in light of conditions and circumstances existing at the time the will was made. Thomas v. Thomas, 258 N.C. 590, 129 S.E.2d 239. In considering the language used, technical words will be presumed to have been used in their technical sense unless the other language of the will evidences a contrary intent; however, when testator obviously does not intend to use words in their technical sense, they will be given their ordinary and popular meaning. Elledge v. Parrish, 224 N.C. 397, 30 S.E.2d 314. In any event, the use of particular words, clauses or sentences must yield to the purpose and intent of the testator as found in the whole will. Moore v. Langston, 251 N.C. 439, 111 S.E.2d 627; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17.

The bequest under consideration was made after testator had disposed of three 'shares' or 'parts' of his estate. Thomas L. Kale was the only remaining child, and the first share had been denominated a 1/4 part. We think the language of the will shows a paramount intent to divide his estate into four equal parts or shares for the benefit of testator's four children or their representatives. There is nothing in the language of the will that indicates that the testator intended to shift the primary responsibility to educate his children from Thomas L. Kale to the other beneficiaries of the will. The provision that any moneys not used for educational purposes should be held and given to Thomas L. Kale runs counter to appellant's contention that the bequest should be satisfied from the general fund. In addition to putting a burden on all the beneficiaries to educate Thomas L. Kale's children, the testator would be destroying the equal division of the corpus of the shares of his estate by giving thomas L. Kale the benefit of any unused moneys in the bequest. The provision in the will allowing Thomas L. Kale to invade the principal of the trust created for his benefit infers a recognition by the testator that Thomas L. Kale's share might be depleted by the educational bequest. Further, if we place ourselves in the position of the testator at the time he made his will, it is understandable that the unskilled writer of his 'homemade' will would consider money taken from any one of the allotted shares of his estate to be synonymous with money taken 'from my estate.'

Plaintiff complains of the failure of the Court of Appeals to classify the legacy as general, specific or demonstrative.

See Shepard v. Bryan, 195 N.C. 822, 143 S.E. 835, for a full discussion of the classification of legacies and for distinctions between general, demonstrative and specific legacies.

In the Lifetime Edition of Page on Wills, Volume 4, Sec. 1392, page 102, it is stated:

'While it is generally assumed that the terms which are used to designate these different classes of legacies have the same meaning, without regard to the nature of the problem, in the solution of which the classification is employed, it is by no means certain that they are used in the same way in all of these cases. The courts determine the class under which a legacy is to be placed, by ascertaining the incidents which testator intended that such legacy should have, whether in case of abatement, due to a deficiency in assets, or in ademption, due to the destruction or sale of the subjectmatter of the gift, or in other questions such as to the right to accretions; and if the court has ascertained the testator's intention in such instances, the court then places the legacy in the class to which such incidents attach it. The court does not begin by determining the class under which the legacy is to be placed; and then attaching to the legacy in question, the incidents which ultimately attach to a legacy of such class. The classification of legacies and devises is, therefore, practically a matter of convenience in expression. The rights of the parties could be determined just as well without the use of the names of these classes of legacies and devises; although it would frequently take more words to express the same idea. It is quite likely, therefore, that a somewhat different meaning is given to these different names of classes, when used in connection with different problems.

'If the result is likely to be the same, whichever class of a legacy or devise it may be, the terms are likely to be used rather loosely. If a question of abatement is involved, and the result would be the same whether the legacy were specific or demonstrative, a legacy which is really specific may be called demonstrative. Conversely if the question is one of ademption by sale of the property, and the result would be the same whether the legacy were a general legacy or a demonstrative legacy, it may be called a demonstrative legacy when it is really a general legacy. The term specific legacy is sometimes used to indicate a legacy to which precedence is given in abatement, rather than a legacy which is in its nature specific.

'Whether a given legacy is residuary, general, specific, or demonstrative depends upon the intention of the testator as shown by the entire will.'

We do not attach importance to the failure of the Court of Appeals to classify this legacy since the facts of this case do not present questions of ademption, abatement or accretion. The only question presented is the source from which the fund is to be satisfied.

We think that the language of the entire will shows that it was the intent of the testator that the educational bequest for his grandchildren be taken from the share of their father, Thomas L. Kale, and that it was the intent of the testator to burden only the share of Thomas L. Kale with the payment of this bequest.

The Court of Appeals correctly found no error in the trial court's findings of fact, conclusions of law and judgment entered as to testator's educational bequest.

Appellant contends that the trial judge erred in concluding as a matter of law that Russell Henderson Kale, Jr. had a vested remainder in all accumulated income from his trust so that if he died before reaching age 60 such accumulated income would be paid to his estate.

The specific provision of the will pertinent to...