Miller v. McLean, 165

• Court: North Carolina Supreme Court
• Writing for the Court: RODMAN
• Citation: Miller v. McLean, 113 S.E.2d 359, 252 N.C. 171 (N.C. 1960)
• Decision Date: 16 March 1960
• Docket Number: No. 165,165
• Parties: Robert P. MILLER and wife, Betty W. Miller, Petitioners, v. Virginia M. McLEAN (Widow); T. R. Ward and wife, Jane Goode Ward; Helen Goode Golden (Widow); Lillian Vanoy Goode (Widow); Jane Ann Cochran and husband, Deale B. Cochran; Helen Goode Cameron and husband, Donald Cameron, Corita Edwards Miller, and Robert A. Little and T. R. Ward, Trustees, Respondents

Page 359

113 S.E.2d 359

252 N.C. 171

Robert P. MILLER and wife, Betty W. Miller, Petitioners, v. Virginia M. McLEAN (Widow); T. R. Ward and wife, Jane Goode Ward; Helen Goode Golden (Widow); Lillian Vanoy Goode (Widow); Jane Ann Cochran and husband, Deale B. Cochran Helen Goode Cameron and husband, Donald Cameron, Corita Edwards Miller, and Robert A. Little and T. R. Ward Trustees, Respondents.

No. 165

Supreme Court of North Carolina

March 16, 1960

Redden, Redden & Redden, Hendersonville, for petitioner appellants.

W. H. Childs, Sr., Lincolnton, for Corita Edwards Miller.

Kemp B. Nixon, Lincolnton, and George Hopkins, Atlanta, Ga., for original respondents.

McDougle, Ervin, Horack & Snepp, Charlotte, for Robert A. Little and T. R. Ward, remaining trustees and executors.

RODMAN, Justice.

Sec. 2 of Plato Miller's will devises to his wife in fee and absolutely his home place and household and kitchen furniture. Her right to this property is not involved in this litigation.

Sec. 3 gives to his wife the sum of $325 to be paid monthly 'during her natural life or as long as she remains my widow, and paid directly to her monthly by said trustees out of the net income of my estate as fully set out hereinafter in this will.'

Sec. 4 appoints petitioner Robert P. Miller and respondents Robert A. Little and T. R. Ward as trustees to provide payment of the monthly allowance fixed by sec. 3. The trustees are directed to take charge of all the cash on hand, stocks, bonds, bank deposits, and other personal property 'and the income derived from all these sources from said properties shall be assets in the hands of said Trustees to pay the $325.00 monthly allowance * * * and that the remainder of said income shall be used for the payment of taxes and other necessary expenses of my said estate, and after this is carried out, I will that the remainder of my income shall be equally divided annually between my son Robert P. Miller and his sister Virginia Miller McLean, or to such as legally represent them * *.' The trustees were given power 'to sell, exchange, re-invest or change * * * any or all of my personal estate * * * in order to carry out the monthly payment to my wife. * * * I further give my three trustees * * * the full power and authority to advance to my son Robert P. Miller and my daughter Virginia Miller McLean, as their necessities may require and the best judgment of said three trustees may dictate, and (sic) part of said bonds, stocks, cash on hand, securities, etc. * * This trust requirement of said three Trustees * * * shall exist during the natural life or as long as she remains my widow, and at her death or remarriage, the said three Trustees * * * shall divide all the remaining or present stocks, bonds, money, etc. * * * and pay * * * the same equally between my son Robert P. Miller and my daughter Virginia Miller McLean, share and share alike or to such as legally represent them, equalizing any advancements made to either or both of them. * * *'

The concluding paragraph of sec. 4 of the will recites that testator owns 64% of the lot now sought to be partitioned, and the remaining 36% was owned by the original respondents.

Sec. 5 devises to his son and daughter 'and to such as legally represent them, equally share and share alike' all of his other real estate.

The trustees named in the will were likewise appointed as executors. They qualified and acted as trustees until January 1959 when petitioner Robert P. Miller was permitted to resign as trustee because of his health.

The court found: Those named as executors and trustees, until the resignation of Robert Miller, collected the rents for the lot here sought to be partitioned and deposited the rents so received as part of the trust fund. Robert P. Miller, while acting as executor and trustee, prevailed upon his co-trustees to distribute part of the corpus of the trust estate to himself and his sister, representing to them that adequate property would remain after such distributions to fulfill the purposes of the trust 'and on such occasions would specifically call the attention of the other Trustees that the property which is the subject of this proceeding was included in the Trust Estate * * *.' Based on these representations, the trustees paid over to petitioner and Mrs. McLean substantial parts of the corpus of the trust estate. '(S)uch liquidation and distribution was made without the consent or approval of the primary beneficiary Corita Edwards Miller, and a further liquidation of the corpus of said Trust could seriously impair the Trust and might render it impossible for the Trustees to carry out the express provisions of the Trust concerning the support and maintenance of Corita Edwards...