Lide v. Mears

• Decision Date: 23 November 1949
• Docket Number: 30
• Citation: 56 S.E.2d 404,231 N.C. 111
• Parties: LIDE et al. v. MEARS et al.
• Court: North Carolina Supreme Court

56 S.E.2d 404

231 N.C. 111

LIDE et al. v. MEARS et al.

No. 30

Supreme Court of North Carolina

November 23, 1949

[Copyrighted Material Omitted]

Marcus Jackson Mears died testate in Haywood County, North Carolina, December 8, 1919, survived by his son, Lawrence K. Mears, and his daughter, Zennie Lide, who are parties to this action.

The two children of Zennie Lide, to-wit, Lucile Wells and Cornelia Wells, and the six children of Lawrence K. Mears, to-wit Thelma Mears Henderson, Mark Mears, Geraldine Mears Fields Mamie Ruth Mears Halley, Linton Norman Mears, and Alton Horace Mears, were living at the death of their grandfather Marcus Jackson Mears. Lucile Wells and Cornelia Wells afterwards married. The former and her husband, R. W. Marr, are still living, but the latter died at an undisclosed date, survived by an only son, Walter Marlette. Alton Horace Mears also passed from life sometime after December 8, 1939, leaving a widow, Florence Sadler, who has since remarried, and three children, Bernard Lawrence Mears, Lynn Laree Mears, and Mary Victoria Mears.

The will of Marcus Jackson Mears consists of these two testamentary documents: (1) An original will dated May 25, 1917, and hereinafter called the will; and (2) a codicil dated September 25, 1919, and hereinafter designated as the codicil. These documents were before this Court in Lide v. Wells, 190 N.C. 37, 128 S.E. 477, a case which did not involve the questions arising on the present appeal.

By the first and second items of the will, the testator put his real property in trust for a term of years from the date of his death for the benefit of his son, Lawrence K. Mears, and his daughter, Zennie Lide. The original will committed the control of the trust estate to a single trustee, to-wit, R. M. Wells, who was also made executor; but the codicil appointed Lawrence K. Mears a co-trustee to act with the 'other trustee named in the will in the management of the property. ' Various items of the will and codicil conferred upon the trustees power to sell particular pieces of the testator's land at specified times during the existence of the trust. The eighth item of the will required the trustees to invest any moneys arising from such sales in Federal and State bonds, and provided that the interest accruing on such bonds would 'be disposed of and distributed in the manner set out' in the third item of the will, which is hereinafter quoted. The testator made express stipulations as to the duration and termination of the testamentary trust in the eleventh item of the will and the third item of the codicil. The eleventh item of the will is as follows: 'That this trust shall remain in full force and effect for sixty years from the date of my death, at which time my said estate shall be equally divided between the heirs of my children, and they shall receive all of my property, both real, personal and mixed, per stirpes. ' The third item of the codicil amends the eleventh item of the will by substituting the words 'twenty years' for the words 'sixty years.'

Both R. M. Wells and Lawrence K. Mears accepted the trust and administered it 'in accordance with the provisions of said will and codicil. ' Wells died October 17, 1941.

The testator was the owner in fee simple of two specific bodies of land in Canton, North Carolina, which were not sold by the trustees. One piece of this realty, which is hereafter called the store property, consists of approximately 5,525 square feet of land containing two brick store buildings, and the other, which is hereafter designated as the hotel property, embraces a hotel building and adjacent vacant land ordinarily used in connection therewith.

The testamentary provisions dealing in express terms with the store property are the third item of the will and the first item of the codicil. By the third item of the will, the testator directed his trustee to take charge of the two brick store buildings in Canton, to lease them, and to pay the net rent accruing on them 'to my said son and daughter in the following manner, to-wit: One-half to Lawrence K. Mears so long as he uses said funds for the use of his children, their maintenance and education; but in event my son shall fail to apply said funds to the proper support of his said children, then my said Trustee, in his discretion, from time to time, is ordered and directed to pay any funds which may come into his hands, as aforesaid, from my estate, to his said children for their support and maintenance or their heirs in case of the death of his said children, and such an amount as in his discretion seems right, to the said Lawrence K. Mears himself from time to time. My said Trustee, after paying said necessary expenses of said buildings as hereinbefore set out, shall pay the remaining one-half of said net income from said buildings, as follows: To my daughter, Mrs. Zennie Lide, one-third and the remaining two-thirds to my granddaughters, Lucile Wells and Cornelia Wells, and in the event of the death of my daughter, Mrs. Zennie Lide, then each of my said two above named grandchildren are to receive one-third given to my daughter. And in the event of the death of my said grandchildren, Lucile and Cornelia Wells, and the death of my said daughter, then the surviving one is to receive the remaining portion.'

The first item of the codicil is as follows: 'That the store buildings mentioned in paragraph three of my said Will may be sold on or before ten years after my death by my trustee and Executor; and the one-half interest in said paragraph three given to Lawrence K. Mears, be and the same is hereby changed in this respect, that is, the said Lawrence K. Mears shall have the said one-half interest for and during his natural life, and at his death in fee to his bodily heirs, thereby revoking that portion of said paragraph three which makes it obligatory upon my son, Lawrence K. Mears, to use the income from said property for the maintenance and education of his children. In the portion of said paragraph three which devises and bequeaths to my daughter, Mrs. Zennie Lide, one-third to her and remaining two-thirds to my two granddaughters, Lucile Wells and Cornelia Wells, be changed in this respect, that is to say, that I will and bequeath to my said daughter, Mrs. Zennie Lide, for life the property therein described and in remainder to my two granddaughters, Lucile Wells and Cornelia Wells, in fee; but in the event of the death of my said grandchildren, Lucile Wells and Cornelia Wells, or the death of either of them, without bodily heirs, then in that event the one surviving is to receive the other's portion of said property.'

The sixth and seventh items of the will and the fourth item of the codicil make specific reference to the hote property. The sixth item of the will is as follows: 'My said Trustee is hereby authorized and empowered and directed to dispose of my hotel property situate in the Town of Canton, North Carolina, by deed to any purchaser or purchasers * * * at such time as in the discretion of my said Trustee may seem right and proper, and receive the proceeds from said sale and invest the same, after paying all expenses, in the manner hereinafter set out in eighth item of this Will. ' The seventh item of the original will contains these provisions: 'I hereby authorize and direct my said Trustee to lease to my said daughter, Mrs. Zennie Lide, the hotel in which I now live, together with the grounds or lands adjacent thereto, so long as the same remains unsold by my Trustee, for which no charges shall be made to my said daughter, except that she shall from time to time keep the said building and grounds on which said hotel is situate in good repair, pay the taxes and assessments on the same, and pay the fire insurance premiums and all other necessary expenses to keep said building and lot in as good repair as it is at present, and my said daughter shall pay all repairs, etc., above mentioned until my said Trustee may in his discretion see fit and proper to sell the same as hereinbefore set out, at which time said lease and occupancy shall immediately terminate. And in event my said daughter shall fail to make said repairs, etc., above set out, then my said Trustee is ordered and directed, in his discretion to terminate said lease, and rent said hotel and grounds at the best rental, and the proceeds derived therefrom to be divided as hereinafter set out in item 8 of this Will.'

The fourth item of the codicil is in these words: 'That the hotel mentioned in paragraph seven of my said Will may be occupied by my daughter, Mrs. Zennie Lide, upon the payment of the taxes and insurance by her; but in the event she does not wish to occupy the same, then my Executor and Trustees are authorized to lease the said building to responsible persons, who have no children, or to persons who will not destroy, deface or impair the value of the property. But in no event shall those occupying said hotel deface or impair the buildings or the grounds; and my Executor may sell the same within two years after my death, and the proceeds arising from the sale thereof, and from the sale of all of my property referred to in this codicil, shall be invested in the manner set out in this my said Will.'

The plaintiffs brought this action against the widow and children of the late Alton Horace Mears for the avowed purpose of obtaining a declaratory judgment construing certain provisions of the will and codicil and adjudicating the respective rights of the parties thereunder in the store property and the hotel property. The complaint details the matters and things set forth above. In addition thereto, the plaintiffs allege that they have received an offer for the purchase of the store property; that they are willing to...