Shoup v. American Trust Co.

• Decision Date: 27 March 1957
• Docket Number: No. 246,246
• Citation: Shoup v. American Trust Co., 97 S.E.2d 111, 245 N.C. 682 (N.C. 1957)
• Court: North Carolina Supreme Court
• Parties: Frank SHOUP v. AMERICAN TRUST COMPANY, a corporation, Executor and Trustee of the Estate of Curtis B. Johnson, Deceased, George Lee, S. M. Lee, Jr., and Harry Lee. D. Watson SMITH v. AMERICAN TRUST COMPANY, a corporation, Executor and Trustee of the Estate of Curtis B. Johnson, Deceased, George Lee, S. M. Lee, Jr., and Harry Lee. C. W. WALLACE v. AMERICAN TRUST COMPANY, a corporation, Executor and Trustee of the Estate of Curtis B. Johnson, Deceased, George Lee, S. M. Lee, Jr., and Harry Lee.

Page 111

97 S.E.2d 111

245 N.C. 682

Frank SHOUP v. AMERICAN TRUST COMPANY, a corporation, Executor and Trustee

of the Estate of Curtis B. Johnson, Deceased,

George Lee, S. M. Lee, Jr., and Harry Lee.

D. Watson SMITH v. AMERICAN TRUST COMPANY, a corporation, Executor and Trustee

of the Estate of Curtis B. Johnson, Deceased,

George Lee, S. M. Lee, Jr., and Harry Lee.

C. W. WALLACE v. AMERICAN TRUST COMPANY, a corporation, Executor and Trustee

of the Estate of Curtis B. Johnson, Deceased,

George Lee, S. M. Lee, Jr., and Harry Lee.

No. 246

Supreme Court of North Carolina.

March 27, 1957

Carswell & Justice, B. Kermit Caldwell, Charlotte, for plaintiffs.

Helms & Mulliss, John D. Hicks, Charlotte, for American Trust Co.

Taliaferro, Grier, Parker & Poe, and Covington & Lobdell, Charlotte, for defendants S.M. Lee, Jr. and Harry Lee.

Cochran, McCleneghan & Miller, Charlotte, for defendant George Lee.

DENNY, Justice.

The appellants seriously contend that the plaintiffs, being only part-time help, were not 'employees of The Charlotte Observer' within the meaning of the will of Curtis B. Johnson and, therefore, the trial court erred in ruling that plaintiffs are entitled to legacies under the provisions of his will, citing Schouler on Wills (5th Ed.), Vol. 1, section 566a; Page on Wills, Lifetime Edition, Vol. 3, section 1035; Rood on Wills, section 460; Metcalf v. Sweeney, 17 R.I. 213, 21 A. 364, and In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12.

It is stated in the above cited section of Schouler on Wills: 'A devise or legacy is not unfrequently given to a servant or servants of the testator. Where a gift is made to such as may answer that description, and without identifying particular persons as the objects of one's bounty, courts incline to limit its benefit if not to strict 'household' servants, at least to such as spend their whole time in the master's employ; not extending the gift, in its scope, to persons who come back and forth for casual employment and work also for others.'

The cited section of Page on Wills contains the following language: 'A gift to employes or servants is a gift to those who are employed with some degree of regularity and continuity. It does not include those who do merely casual work for the designated employer. A gift to 'such servants as shall be in my employ at my death' does not include persons who were hired a day or so at a time to assist the regular servants.'

Section 460 of Rood on Wills states: 'Gifts to servants, unexplained, include only those directly and regularly employed.'

The case of Metcalf v. Sweeney, supra, involved the interpretation of a provision in the will of one Henry J. Steere, reading as follows: 'I direct my said executor to transfer and pay over to such servants as shall be in my employ at my death the sum of twelve thousand dollars in such manner that each of said servants shall receive equal portions of said sum.'

There were six servants employed by the testator regularly and continuously at the time of his death. Mrs. Annie Crosby claimed to be entitled equally with the six. The opinion recites the following with respect to Mrs. Crosby's employment: 'The most trustworthy testimony as to the extent of her employment comes from a Miss Arnold, housekeeper, for Mr. Steere, who testifies from memoranda made for purposes of payment. She testified that Mrs. Crosby worked 37 days in 1885, 131 in 1886, 65 1/2 in 1887, 34 in 1888, and 35 in 1889; that as a rule she was not employed more than two days a week, and then to help the regular servants.'

Upon this evidence, the Court held: 'It seems to us that the service rendered by her lacks the continuity, the fixity and permanence, of relation that is needed to give validity to the claim. Our decision is that she is not entitled to share in the bequest.'

Likewise, the appellants here, in support of their contention that these plaintiffs were not employees within the meaning of the provisions of the will of Mr. Johnson, recite the following statement from the opinion in In re Will of Johnson, supra: 'The solution of the problem is found in the expressed purpose of the testator. His intention is his will. This intention is to be gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if it is not also within the intention.'

In our opinion, the foregoing authorities do not support the appellants' contention in light of the facts before us. It is clear that Metcalf v. Sweeney, supra, as well as the textbook authorities cited, support the view that the servant or employee should be excluded where the employment was casual, but included where there was continuity and permanence of employment. Therefoer, it becomes pertinent and important to see what is meant by 'casual employment.' Black's Law Dictionary, 2nd Edition, page 288, defines 'casual' in this connection as meaning 'occasional; incidental; happening at uncertain times; not stated or regular.' In the case of Van Nuys v. Levine, 165 A. 885, 886, 11 N.J. Misc. 309, the Court defined as 'casual employment,' employment for 'a particular job which is not to be continued at regular or recurring intervals.' In Dobrich v. Pittsburgh Terminal Coal Corp., 145 Pa.Super. 87, 20 A.2d 898, 900, the Court quoted with approval from the case of Cochrane v. William Penn Hotel, 140 Pa.Super. 323, 13 A.2d 875, affirmed 339 Pa. 549, 15 A.2d 43, the following: 'Applying it [casual] as practically as possible to the subject of employment, it may be said in general that if a person is employed only occasionally, at comparatively long and irregular intervals, for limited and temporary purposes, the hiring in each instance being a matter of special engagement, such employment is casual in character. On the other hand, even though an employment is not continuous, but only for the performance of occasional jobs, it is not to be considered as casual if the need for the work recurs with a fair degree of frequency and regularity, and, it being thus anticipated, there is an understanding that the employee is to perform such work as the necessity for it may from time to time arise.' Likewise, in Flynn v. Carson, 42 Idaho 141, 243 P. 818, the Court held that regular recurring employment, though only on Saturday nights, of an...