Lide v. Wells

• Decision Date: 24 June 1925
• Docket Number: 582.
• Parties: LIDE ET AL. v. WELLS ET AL.
• Court: North Carolina Supreme Court

128 S.E. 477

190 N.C. 37

LIDE ET AL. v. WELLS ET AL.

No. 582.

Supreme Court of North Carolina

June 24, 1925

Appeal from Superior Court, Haywood County; Finley, Judge.

Petition by Mrs. Zennie Lide and others against R. M. Wells, executor and trustee, and L. K. Mears, trustee of the estate of M. J Mears, deceased, for construction of a will. From the decree respondents appeal. Modified and affirmed.

Occupant of hotel property held not to have forfeited interest under will by leaving hotel.

Petitioners as legatees, devisees, and beneficiaries named in the last will and testament of M. J. Mears, deceased, have brought this action against the defendants, trustees named in said will, praying a judgment and decree construing said will, and determining the interests of the petitioners thereunder. They further pray that the court decree that the trust estate created by the provisions of the said will, be declared at an end; and that defendants be discharged as trustees under said will; that an offer made in writing by W. J. Hampton of $8,000 for the vacant lot described in the will be accepted; and that an order be made for the conveyance of said lot to said Hampton upon payment of said sum; and that a sufficient amount, at least of the vacant lot described as part of the hotel property, be sold to raise funds with which to pay off and discharge certain street assessments levied by the town of Canton against said property; and that the remainder of said fund, together with the money derived from the sale of the vacant lot be invested under the orders of the court.

Defendants, as trustees, filed an answer in which they aver that their only interest in the matters set forth in the petition arises from their desire to perform their duties as such trustees, and pray the court to advise them as to their powers and duties under the will of their testator.

Upon the hearing, the court found the facts and rendered judgment and decree thereon. Respondents excepted to the judgment and appealed to the Supreme Court. Assignments of error are stated and discussed in the opinion below.

Clarence Blackstock and Eugene Taylor, both of Asheville, for appellants.

Smathers & Robinson, of Canton, and A. L. Clark, of Roanoke Rapids, for adult appellees.

T. A. Clark, of Canton, for minor appellees.

CONNOR J.

M. J. Mears died in Haywood county on December 8, 1920. A paper writing, copy of which is attached to the petition, was duly probated as his last will and testament, and recorded in the office of the clerk of the superior court of Haywood county.

The first item of said will is as follows:

"It is my will and desire that all my real and personal property which I may own at my death shall be held and disposed of by my trustee hereinafter named and in the manner hereinafter set out."

In the next item, he constitutes and appoints "my trusted friend, R. M. Wells, of the city of Asheville, N. C., trustee to hold and control and to do everything necessary in and about certain of my real estate hereinafter described, for a term of fifteen years from the date of my death; for the use and benefit of my son, Lawrence K. Mears, and my daughter, Mrs. Zennie Lide, and their children or grandchildren, in the event of their death as hereinafter more fully set forth." This will is dated May 25, 1917. In a codicil dated September 25, 1919, he appoints his "beloved son, Lawrence K. Mears, as one of my trustees, to aid my other trustee, named in the will, in the management of the property in said will bequeathed and devised."

Specific reference is made in the will to certain lots of land situate in the town of Canton; specific directions are given to the trustees as to these lots. Item 8 is in the following words:

"That my said trustees from any and all moneys derived from the sale of my property belonging to me at the time of my death are authorized and directed to invest the same in North Carolina bonds or United States bonds, at the best rate of interest possible, and the net proceeds arising from said bonds (in way of interest) shall be disposed of and distributed in the manner set out in paragraph three hereof."

In item 3 testator directs that the net proceeds of all sums, collected as rent for his lots, be divided equally between his son and daughter, and paid by the trustees to them, as directed therein. Item 11 is as follows:

"That this trust shall remain in force and effect for sixty (changed to twenty by the codicil) 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 first paragraph of the judgment, signed by Judge Finley, is as follows:

"That a trust estate in all the property, both real and personal, of the testator, except such property as was mentioned in paragraph 5 of said last will and testament, was created by the last will and testament of M. J. Mears, deceased, and that R. M. Wells and L. K. Mears were appointed trustees of said estate by the terms of said last will and testament for a term of 15 years."

Defendants except for that his honor should have adjudged that said trust estate was created for a period of 20 years, as appears from item 11, as modified by the codicil, paragraph 3. Appellants' first assignment of error is based upon this exception. It is conceded by plaintiffs that this assignment of error should be sustained. By the express provisions of said item 11, the trust shall continue for and expire at the end of 20 years. The judgment should be modified in accordance with this holding.

By item 7, of his will, the testator authorizes and directs his trustees to lease to his daughter, Mrs. Zennie Lide, the--

"hotel in which he lived at the date of the execution of the will, together with the grounds or lands adjacent thereto, so long as the same remains unsold by said trustees, 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."

"In event my said daughter shall fail to make said repairs, etc., above set out, then my trustees are ordered and directed, in their 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 paragraph 8 of this will." The above provisions of this item are changed by paragraph 4 of the codicil to the extent that the said daughter is relieved of payment of assessments, and required to pay only taxes, premiums for insurance, and repairs. It is therein further provided, that in the event she does not wish to occupy said hotel and grounds, the trustees are authorized to lease the same, in accordance with the provisions of said codicil.

Paragraph third of the judgment is as follows:

"It is further adjudged by the court that Mrs. Zennie Lide had a right to use and occupy the said hotel, without paying rent, and upon condition that she pay the taxes, insurance and repairs upon the building and that she preserve and maintain the hotel property; and it appearing to the court that Mrs. Zennie Lide with the acquiescence of the trustees, has temporarily moved away from the hotel and placed the management of the same in other hands, it is therefore ordered and adjudged that Mrs. Zennie Lide has not forfeited her right to use and occupy the hotel property by permitting the same to be occupied by others, and that she may hereafter with the permission of the trustees, continue to allow others to occupy said hotel property, and receive the rents therefrom, from which rents and other sources she shall keep the said property in repair, and pay the taxes and insurance on said property."

The defendants except to this paragraph of the judgment, contending that under the will Mrs. Lide forfeited all interest in the hotel property, when she ceased to occupy the same in person, and that thereafter the trustees were entitled to the rents from the same, to be distributed as income from other property in their hands. The second assignment of error is based upon this exception.

This contention is not sustained by Manning v. Woff, 22 N.C. 11. In that case provision was made by the testator for his widow and his children, while the children remained "at home." It was held that plaintiff, having left home to live with a married sister, was not...