Stephens v. Clark

• Decision Date: 06 January 1937
• Docket Number: 750.
• Citation: Stephens v. Clark, 211 N.C. 84, 189 S.E. 191 (N.C. 1937)
• Parties: STEPHENS v. CLARK et al.
• Court: North Carolina Supreme Court

189 S.E. 191

211 N.C. 84

STEPHENS v. CLARK et al.

No. 750.

Supreme Court of North Carolina

January 6, 1937

Appeal from Superior Court, Forsyth County; Frank S. Hill, Special Judge.

Action by Hannah Lee Bell Stephens against Lanelle Martin Clark and husband and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

In determining the legal heirs as used in a will, after the identity of a person is established, the legal heirs of that person is a matter for court.

This cause was instituted originally by William T. Bulter, Jr. the predecessor in title of the plaintiff, for partition of described lands. The defendants denied plaintiff's title and plead sole seisin.

Issues were submitted to the jury and the following verdict rendered:

"1. Was the William T. Bulter, Jr., under whom the plaintiff claims, the brother of and did he survive Isabelle Wyche deceased, as alleged in the complaint? Ans: Yes.

2. Is the plaintiff, Hannah Lee Bell Stephens, the successor in title to such interest as the said William T. Butler, Jr., had, if any, in the lands described in the complaint, at the time of the institution of this action? Ans: Yes."

From judgment on the verdict decreeing plaintiff entitled to an undivided interest in the land and remanding the cause to the clerk of the superior court for further proceedings in partition, the defendants appealed.

Benbow & Hall and Ingle & Rucker, all of Winston-Salem, for appellants.

Parrish & Deal, of Winston-Salem, for appellee.

DEVIN Justice.

The original owner of the land described in the complaint and the ancestor from whom the parties in interest claim descent was William T. Butler, Sr., who died testate in 1905, leaving him surviving his widow Theresa Butler, a daughter Isabella Wyche, a son William T. Bulter, Jr., and four grandchildren, the issue of a deceased daughter. The grandchildren, and the heirs of one of them who has died, are defendants in this action, and the plaintiff claims under William T. Bulter, Jr.,

By the will of William T. Butler, Sr., he devised certain lands to his said grandchildren, and one-half interest in certain other lands to his daughter Isabella Wyche, and to Isabella Wyche also his home place, with the following qualification: "And my daughter, Belle Wyche, shall give to my wife, Teressa Butler, a home and support from all my land, so long as she remains my widow and no longer." To his son, William T. Butler, Jr., who was then, and continued to be, a resident of the state of California, he bequeathed $1.

Isabella Wyche died in 1906. She had no children, and her will, duly admitted to probate, is in the following words: "I, Isabella B. Wyche, being of a sound mind doth hereby make and declare my last will and testament. My husband, Robert P. Wyche, shall have full and entire possession of all of my property including my bank account with the First National Bank of Charlotte, North Carolina, and also my account with the Loan and Savings Bank of Charlotte, North Carolina. All my money in the First National Bank of Charlotte, North Carolina shall be devoted to keeping up the old homeplace during the life of my stepmother. After her death, the remainder of the specified amount shall go to the support of the heirs according as they may need and deserve it. My money in the Savings Bank of Charlotte, N. C., I give and bequeath to my husband, Robert P. Wyche. The rents from my interest in tenement houses now in the possession of my husband shall go also to keeping up the old home place during the life of my stepmother, Theresa K. Bulter. And in case my husband die before my stepmother then all the property or money belonging to my estate at the time of his death shall go to keep up the old homestead and then at the death of my stepmother all of the property shall go to the legal heirs. My husband shall be the counselor and adviser of my stepmother in all her business affairs. It is my desire also for him to be the counselor and adviser of my nieces, Louella, Agnes, Grace and Melba Martin, concerning the property left for them by my father, William T. Butler."

Theresa Butler, widow of William T. Butler, Sr., and stepmother of Isabella Wyche, died in 1926. William T. Butler, Jr., after instituting this proceeding for partition in 1930, died leaving a last will and testament in which he devised all his estate of every kind and wherever situated "including my interest in the estate of Isabella Wyche" to his wife, Laura Butler, who was substituted as party plaintiff, and on the death of Laura Butler her daugther and only heir at law, Hannah Lee Bell Stephens, was substituted as party plaintiff. The issues submitted to the jury were addressed to the question of the identity of the plaintiff, and were answered in her favor. There were no exceptions to the charge of the court and there was competent evidence to support the verdict. It has therefore been established that the plaintiff is the successor in title to William T. Butler, Jr., who was the brother of Isabella Wyche.

Robert P. Wyche, the husband of Isabella Wyche, now 85 years of age, is still living, and has executed quitclaim deed for whatever interest he might have in the land to the defendants. Robert P. Wyche and the defendants have been in possession of the lands, receiving the rents therefrom since the death of Isabella Wyche.

There was correspondence by letter between William T. Butler, Jr., and his nieces, the defendants, in 1928, 1929, and 1930, some of the letters containing references to the land and admissions of his interest therein. However, it was testified that the references in the letters to his interest in the land were due to erroneous advice as to the law.

It is apparent that the rights of the parties in the described lands are to be determined largely by the construction to be put upon the will of Isabella Wyche.

The provisions in the will of William T. Butler, Sr., for his widow, Theresa Butler, created an equitable charge upon the land in her favor, and the will of Isabella Wyche, to whom the land was devised subject to the charge for the purposes named, provided in her will for the continuation of this trust, and directed that the rents from the property should go to keeping up the home place during the life of her stepmother.

The defendants contend that the provision in the will of Isabella Wyche for her husband, Robert P. Wyche, should be construed to constitute a devise to him of the land in fee simple, in accord with the rule prescribed by C.S. § 4162.

The pertinent portions of the will relating to him are as follows: "My husband, Robert P. Wyche, shall have full and entire possession of all my property including bank account with the First National Bank of Charlotte. All my money in the First National Bank of Charlotte shall be devoted to keeping up home place during life of my stepmother. After her death the remainder shall go to the support of the heirs according as they may need and deserve it. The rents from my interest in tenement houses now in possession of my husband shall also go to keeping up old home place during life of my stepmother. And in case my husband die before my stepmother, then all the property or money belonging to my estate at time of his death shall go to keep up old homestead, and then at death of my stepmother all the property shall go to the legal heirs."

The rule that, when real estate shall be devised to any person, the same shall be construed to be a devise in fee simple is inapplicable here as the words used in the will of the testatrix negative the idea of the investiture of title in fee, or for life, or the granting of any other beneficial interest in the real property to Robert P. Wyche, and express the intent, rather, to impose upon her husband duties as executor and trustee of an active trust, with directions as to the use of the property real and personal, and as to how the income shall be applied during his life and after his death, in case he should die before her stepmother.

It seems that one of the principal objects she had in view at the time of making her will was to carry out the wishes of her father for the care of his widow, her stepmother, and the possession of her real property in the hands of her husband was definitely limited to this specific purpose. The bequest of personal property to him was couched in different language. As to that she said: "My money in the Savings Bank of Charlotte I give and bequeath to my husband, Robert P. Wyche." While the testatrix does not use the word trust or trustee, it is well settled that no particular language is required to create a trust relationship if the intent to do so is evident. If it appears that the intention is that the property be held or dealt with for the benefit of another, a court of equity will affix to it the character of trust. Waldroop v. Waldroop, 179 N.C. 674, 103 S.E. 381; Ladies Benevolent Society v. Orrell, 195 N.C. 405, 142 S.E. 493.

It is true it has been uniformly held since the passage, in 1784 of the act, now...