Shepard v. Bryan

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Shepard v. Bryan, 195 N.C. 822, 143 S.E. 835 (N.C. 1928)
• Decision Date: 23 June 1928
• Docket Number: 180.
• Parties: SHEPARD et al. v. BRYAN et al.

143 S.E. 835

195 N.C. 822

SHEPARD et al. v. BRYAN et al.

No. 180.

Supreme Court of North Carolina

June 23, 1928

Appeal from Superior Court, Craven County; Harris, Judge.

Action by Mary Shepard and others against Alice H. Bryan, executrix of the estate of James A. Bryan, deceased, and Charles S Bryan and Alice H. Bryan, individually, under the will of the deceased. From the judgment, the defendants appeal. Charles S. Bryan appealed separately from an order allowing the executrix $12,500 commission and her attorney $10,000 fees on estate of $411,389.36. Modified and affirmed on defendant's appeal; affirmed on appeal of Charles S Bryan.

"General legacy" is bequest chargeable generally on personal estate, and is not distinguishable from other parts of estate.

Action by plaintiffs as legatees under the will of James A. Bryan deceased, to compel an accounting by the defendant executrix and the payment of the legacies bequeathed in the third item of said will. The plaintiffs filed their complaint, and the defendants filed separate answers, Alice H. Bryan in both her individual and her representative capacity.

James A. Bryan, a resident of Craven county, died on January 30 1923, leaving a will, dated February 20, 1918, and probated February 21, 1923, in the office of the clerk of the superior court of Craven. The following are the material items:

Second. "I direct that my just debts shall be paid by my executrix, and to this end I hereby authorize and empower her to sell and make title to a sufficiency of my timber and trees with the usual rights of way and terms of years to cut and remove the same to pay said debts, or she may sell in fee simple enough of my country lands to pay same and to make title to same, and I hereby charge my country lands with the payment of all my debts, so that said debts shall not have to be paid out of my personal estate."

Third. "I give and bequeath to my niece, Laura Hughes, $5,000; to my brother, Washington Bryan, $10,000; to my friend, Miss Mary Shepard, $2,000; and $5,000 to the Wardens and Vestry of Christ Protestant Episcopal Church of New Bern, N.C. All bequests in this item to be paid by my executrix out of the income from my estate and at the convenience of my executrix."

Sixth. "I give and bequeath to my beloved wife, Alice H. Bryan, all the capital stock that I shall own in the National Bank of New Bern, New Bern, N. C., at my death (my present holdings consisting of 501 shares standing in my own name, and one share standing in the name of Henry R. Bryan, Jr.); also 100 shares of the capital stock of the First National Bank of Durham, N. C.; also all my capital stock in the Atlantic Coast Line Railroad Company; also all my capital stock in the United States Steel Company or Corporation; also all the moneys due me at the time of my death by the Virginia Trust Company of Richmond, Va., and the Union Trust Company of New York City, and the National Bank of New Berne, New Bern, N. C., and any other bank or trust company; also all moneys that may be found in the iron safe in my library and in my lock box in the vault of the National Bank of New Berne; also all my horses, carriages, wagons, carts and harness."

Tenth. "All the rest and residue of my property of every kind and nature and wheresoever situate, not hereinbefore disposed of, I give, bequeath and devise to my beloved son, Charles S. Bryan, and to my beloved grandchildren, Gray Bryan, Mary Bryan and Margaret Bryan, share and share alike."

In the fourth item there is a legacy to each of certain servants; in the fifth, to the testator's daughter-in-law; in the seventh, a devise of the mansion and lot to his wife for life, with remainder in fee to the testator's son, Charles S. Bryan; in the eighth, a bequest of books, silver, etc., to his wife; and in the ninth a gift to her of a lease and rental made by him to the Craven Chemical Company.

The case was referred to J. C. Clifford, who made a report containing his findings of fact and conclusions of law. Exceptions were filed, and all the findings of fact were approved by the judge, except the eighth, ninth, seventeenth, nineteenth, and twenty-second, which were modified, and all the conclusions of law affirmed, except the fourth, which also was slightly modified.

The material facts were found to be these: (3) According to the inventory of the executrix, the testator's real estate at the time of his death was valued at $202,000 and his personal property at $311,000.

(4, 5) According to the inventory filed with the commissioner of revenue and the finding of the referee and judge, a fair value of the real estate was $237,600 and of the personal property $198,274.64.

(6) In addition to the personal property, stocks and bonds of the total value of $150,491.

(7) The testator's indebtedness, not including commissions to the executrix, was $135,347.37, and the net value of the estate at the time of the decedent's death was $411,389.36.

(8) The testator owned 30,000 or 40,000 acres of timber lands, a part of which was sold, and he and the purchaser agreed on an adjustment whereby the testator received from the Blades Lumber Company $100,000, of which $25,000 was paid in cash and the residue of $75,000, represented by notes of the company, has since been paid, a portion thereof after the testator's death, and all these payments were credited upon the purchase price of lands sold to the Pamlico Lumber Development Company. After the death of the testator, the executrix made a further contract with the Blades Lumber Company by which $25,000 additional was to be paid for other timber to be cut.

(9) Subsequent to the execution of the will, and prior to his death, testator sold 30,000 acres of timber land or country land to the Pamlico Lumber Company at a recited consideration of $360,000, part of which was paid to testator in cash, certain commissions allowed, leaving a balance represented by notes payable to the testator in the sum of $322,000, these being secured by a mortgage or deed of trust on the land conveyed. All of these notes were disposed of during testator's lifetime, with the exception of $129,560, included in the inventory of the executrix, and the notes of J. B. Blades Lumber Company set forth in the inventory of the executrix.

(10) The testator owned other country lands, not yet sold, of the value of $27,250.

(11) All the James City property, i. e., all the 600 acres not included in the leasehold estates or in the village proper, is country land, of the value of $75,000.

(12) The testator was indebted to his son, Charles S. Bryan, in an amount which was agreed to be $107,534.12, and the executrix delivered to said Charles S. Bryan notes payable to the estate in the sum of $136,954.62, and he receipted for it as follows: In payment of the indebtedness of the estate to him, $107,534.12; in payment of legacies to him and his children, $29,420.50.

(13) This compromise was made in good faith.

(14) Prior to this, Charles S. Bryan's children had conveyed to him their interest in the testator's estate.

(15) Alice H. Bryan, the executrix, has received in cash, or in notes treated and disposed of as cash since the death of her testator, including the notes delivered to Charles S. Bryan, $242,432.04, including $11,174, money borrowed by the executrix.

(16) The executrix has disbursed and distributed, including the $136,954.62 in notes delivered to Charles S. Bryan, the sum of $236,278.98.

(17) There has come into the hands of the executrix from dividends, rents, and interest collected, the sum of $65,303.20. In addition to these, the executrix has received on notes, money, etc., the sum of $29,073.48, all of which are accruals of the estate since the testator's death, not including any sum for the notes delivered to Charles S. Bryan.

(18) The total expense charged by the executrix against this income is $53,563.44, consisting of items set out in the referee's report.

(19) Included in the receipts of the executrix since the death of the testator is $3,295, interest, dividends, etc., due at the time of his death, but collected thereafter, and neither of the accounts for expenses of the estate includes commissions for the executrix or any unpaid sums due to attorneys.

(20) One-third of the expense should be allocated to property specifically devised.

(21) The lands mortgaged to secure the notes of the Pamlico Lumber Company in the sum of $129,560 were sold under the mortgage and purchased by Charles S. Bryan for $150,000, an expense account of $13,000 having been incurred in the sale, so that Charles S. Bryan received less than the principal and interest of his debt.

(22) The total receipts were $242,432.04. The disbursements, not including unpaid attorneys' fees or commissions, embrace expenses which should be allocated to property specifically devised.

The conclusions of law are as follows:

(1) It is apparent from an inspection of the will and from the facts found by the referee that the major part of the assets of the estate which were capable of yielding interest, profit, or dividend were specifically devised. In the opinion of the referee, the specific bequests and devises of interest-bearing property were intended to carry to the beneficiaries thereof the interest, profits, and dividends as well as the corpus of the property so bequeathed or devised; that it is illogical to hold that the testator intended by the word "income" used in item third of the will to restrict the payment of the bequests therein set forth to the comparatively small income derived from property not specifically bequeathed or devised. The referee, therefore, concludes that, in directing that the bequests mentioned in item third should be paid out of the income from...