Poindexter v. Wachovia Bank & Trust Co.
| Decision Date | 11 January 1963 |
| Docket Number | No. 387,387 |
| Citation | 128 S.E.2d 867,258 N.C. 371 |
| Parties | William H. POINDEXTER v. WACHOVIA BANK AND TRUST COMPANY, Executor and Trustee under the Will of Dora L. Poindexter, Lafayette Williams, Guardian Ad Litem for Julia Lee Poindexter and Peggie Elizabeth Poindexter, both minors, and Samuel G. Seawell, Guardian Ad Litem for the unborn issue of William H. Poindexter. |
| Court | North Carolina Supreme Court |
Hudson, Ferrell, Petree, Stockton, Stockton & Robinson and G. D. Humphrey, Jr., Winston-Salem, for plaintiff.
Womble, Carlyle, Sandridge & Rice and W. P. Sandridge, Winston-Salem, for defendant Wachovia Bank & Trust Company, executor and trustee.
LaFayette Williams, Winston-Salem, guardian ad litem for Peggie Elizabeth Poindexter, defendant.
Samuel G. Seawell, Winston-Salem, guardian ad litem for the unborn issue of William H. Poindexter, defendant.
Dora L. Poindexter executed a will on 10 January 1923 and another on 10 February 1936. She died on 4 October 1952 and both paper writings were admitted to probate in common form as her last will and testament by the Clerk of the Superior Court of Forsyth County on 16 October 1952.
Dora L. Poindexter was survived by the following: a son, William H. Poindexter; two minor granddaughters, Julia Lee Poindexter and Peggie Elizabeth Poindexter, children of William H. Poindexter; a sister, Cora A. Philpott; and 'children of one or more (of testatrix's) brothers or sisters who had predeceased her.'
The will of 10 February 1936 is in pertinent part as follows:
'First, after paying any just debts and funeral expenses including an appropriate family monument to cost not exceeding $500.00 I trust all of the balance of my property which I shall own at the time of my death to Wachovia Bank and Trust Company to be held in trust for my son William Harvey Poindexter and be paid out to him in the manner herein after stated.
'2nd. To pay to my said son for his use all of the net income from my estate for the purpose of giving him proper support and if he should get disable to work and if the income is not sufficient, I direct that so much of the principal be use as may be deemed wise to properly support him.
The Wachovia Bank and Trust Company accepted the trust and entered upon its duties as trustee.
William H. Poindexter, son of testatrix, instituted this action and asked the court to declare: (1) that the will of 10 February 1936 revoked the will of 10 January 1923; (2) that the 'beneficial interest' in the trust 'will not in all events vest within the life or lives of a person or persons in being at the death of the testatrix plus twenty-one (21) years and ten (10) lunar months; the trust therefore fails and the property * * * passes to the heirs and next of kin of testatrix under the laws of intestacy'; and (3) plaintiff is entitled to the property absolutely, free of the trust.
Cora A. Philpott, sister of testatrix, died before the institution of this action, and none of testatrix's nieces and nephews or collateral kinsmen are parties to the action. Guardians ad litem were appointed for the children of William H. Poindexter and for his unborn issue, and they filed answers. The trustee answered. Julia Lee Poindexter came of age before judgment was entered and filed answer in her own behalf. The answers contest the legal construction placed on the will by plaintiff.
The facts, hereinbefore recited, are not in dispute. In the judgment the court below made the following judicial declarations:
1. '* * * (T)he will of Dora L. Poindexter dated February 10, 1936, revoked the paper writing * * * dated January 10, 1923, and is the last will and testament of Dora L. Poindexter.'
2. All necessary parties are before the court.
3. The word 'issue' as used in item fourth of the will means 'a perpetual succession of lineal descendants of William H. Poindexter,' and the will 'purports to create a trust in which the beneficial interest therein will not in all events vest within the life or lives of a person or persons in being at the death of the testatrix plus twenty-one (21) years and ten lunar months * * *.' Therefore the purported trust is void as violative of the rule against perpetuities.
4. The property held by the trustee vested in William H. Poindexter by the laws of intestate succession as of the date of the death of testatrix and he is entitled to the property.
All defendants appealed. There is no exception to the adjudication that the will of 10 February 1936 revoked the former will, and the judgment is, as to this declaration, binding on the parties. Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524; Bell v. Gillam, 200 N.C. 411, 157 S.E. 60. Defendants challenge the other declarations listed above.
The trust provisions of the will are in pertinent part as follows:
Some of the language of the will and some of the facts appearing in the record seem, at first glance, to indicate that testatrix intended that William have a fee defeasible in the trust property, subject to the trust. The property is 'to be held in trust for * * * William Harvey Poindexter.' In the 1923 paper writing testatrix made provision for her husband's support, but there is no mention of him in the later will and it is assumed that he died in the meantime. William had no children in 1936 and if he was married at that time the record does not show it. Both daughters were minors when this action was commenced and could not have been living in 1936. So it is apparent that William was the primary natural object of testatrix's bounty. Nevertheless, when the entire will and all the record facts are considered, we are of the opinion that testatrix intended for William only a beneficial life estate, that is, all of the net income from the trust estate and a sufficiency of the corpus for his proper support so long as he lives. The intent of the testatrix is her will and must be carried out unless some rule of law forbids it. Barton v. Campbell, 245 N.C. 395, 95 S.E.2d 914. There are limitations over to take effect if he dies either with or without issue him surviving, that is, his estate is limited in either event. In 1923 William had not reached college age, and the paper writing executed by testatrix that year made provision for his 'education through college' and states that Further, if William dies 'before receiving his legacy leaving issue then his issue shall receive the estate.' Where there is a latent ambiguity as to the object of a devise or bequest former wills are admissible as bearing upon the intention of the testator. 57 Am.Jur., Wills, § 1107, p. 708. In the 1936 will Mrs. Poindexter makes no devise or bequest of the trust corpus to her son, except such as is necessary for his proper support. The last will states specifically what is to be paid to the son and what benefits he is to receive. It indicates why the property is put in trust for him--his support. We do not speculate as to what occurred to cause testatrix to change her intentions, but it is clear that she did. William Harvey Poindexter is vested of a beneficial life estate.
We next consider, out of order, the executory devise to brothers and sisters, to wit: '* * * (I)f he (William) should leave no issue then I will and direct that what remains of my property * * * be divided between my brothers and sisters that is living * * *.' The expression 'that is living' means those living at his death. All of testatrix's brothers and sisters are now dead. All predeceased Mrs. Poindexter except Mrs. Philpott, and she died before this litigation commenced. The class is extinct and there are no executory devisees to answer roll call at William's death. The children and issue of the brothers and sisters who predeceased testatrix do not qualify under the terms of G.S. § 31-42. At testatrix's death Mrs. Philpott had neither the immediate right of present enjoyment nor a present fixed right of future enjoyment. An executory interest is not vested until the time comes for taking possession. Parker v. Parker, 252 N.C. 399, 405, 113 S.E.2d 899. A vested estate is transmittable, a contingent estate is not. Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 452, 70 S.E.2d 578. Testatrix's nieces and nephews are not necessary parties to this action. The executory devise has lapsed.
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