Security Nat. Bank of Greensboro v. Hannah, 607

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE
• Citation: Security Nat. Bank of Greensboro v. Hannah, 114 S.E.2d 273, 252 N.C. 556 (N.C. 1960)
• Decision Date: 18 May 1960
• Docket Number: No. 607,607
• Parties: SECURITY NATIONAL BANK OF GREENSBORO, In Its Own Right, and as Trustee Under the Will of Claude Kiser, Deceased, v. Jean Kiser HANNAH, Martha Jean Hannah, James Hunt Hannah, lll, a Minor, Mamie Ann Hannah, a Minor, Richard M. Kiser, And All Persons Not in Esse Who May Take Under the Will of Claude Kiser.

Page 273

114 S.E.2d 273

252 N.C. 556

SECURITY NATIONAL BANK OF GREENSBORO, In Its Own Right, and as Trustee Under the Will of Claude Kiser, Deceased, v. Jean Kiser HANNAH, Martha Jean Hannah, James Hunt Hannah lll, a Minor, Mamie Ann Hannah, a Minor, Richard M. Kiser, And All Persons Not in Esse Who May Take Under the Will of Claude Kiser.

No. 607

Supreme Court of North Carolina.

May 18, 1960

E. D. Kuykendall, Jr., Greensboro, as guardian ad litem and for Martha Jean Hannah, defendant-appellants.

York, Boyd & Flynn, Greensboro, for plaintiff-appellee.

Cooke & Cooke, Greensboro, for defendants Jean Kiser Hannah and Richard M. Kiser, appellees.

MOORE, Justice.

The time of termination of the trust is the sole question for decision on this appeal. The solution depends upon the proper interpretation of the first sentence in paragraph 12, Item Fifth, of the will, which reads as follows: 'When my youngest living grandchild becomes twenty-one years of age, the trust property then in the hands of the trustee shall be distributed.'

Appellees maintain that the trust terminates when the youngest grandchild of testator living at the time of his death reaches the age of twenty-one. On the other hand, appellants contend that the trust continues until the youngest grandchild, whenever born, reaches the age of twenty-one years.

The controlling objective of testamentary construction is the intent of the testator. Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 451, 70 S.E.2d 578. This intent is ordinarily to be ascertained from an examination of the will from its four corners. Bullock v. Bullock, 251 N.C. 559, 563-564, 111 S.E.2d 837.

From an examination of the will as a whole, it is evident that testator's wife and children were the primary objects of his bounty. The portion of the will involved here makes no direct gift to grandchildren or to any person other than testator's children. The sentence quoted above is only a 'measuring rod' for determination of the duration of the trust.

The possibility that Richard M. Kiser will have issue and that Jean Kiser Hannah will have other child or children will continue to exist so long as they live. The law presumes that the possibility of issue is not extinct until death. McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 9, 81 S.E.2d 386. Therefore, if the contention of appellants is correct, the trust must continue and the trust property may not be distributed until after the death of both of testator's children. Either or both may be survived by a child or children of tender years. In such case the property could not be distributed until the youngest of them arrives at the age of twenty-one. The construction urged by appellants would deprive testator's children of all except a small portion of the gift. They would each realize $50 per month for life, emergency help in case of illness and assistance in the college education of their children. When we consider that the trust property has a present value of approximately $350,000, it is apparent that testator's children would scarcely receive even the income from the trust estate.

We do not agree that such result is in accord with testator's intention. He declares in Item Fifth, paragraph 12, '* * * it is my desire that my daughter, Jean K. Hannah, and my son, Richard M. Kiser, shall share equally in my estate.' Directions are then given to the trustee for arriving at and making an equal distribution between them of the entire trust property at the termination of the trust. This language is used: 'Said share shall then (after computation so as to arrive at equality) be paid over to each of my said...