Wachovia Bank & Trust Co. v. Waddell

• Decision Date: 21 November 1951
• Docket Number: No. 112,112
• Citation: Wachovia Bank & Trust Co. v. Waddell, 67 S.E.2d 651, 234 N.C. 454 (N.C. 1951)
• Court: North Carolina Supreme Court
• Parties: WACHOVIA BANK & TRUST CO. v. WADDELL et al.

Page 651

67 S.E.2d 651

234 N.C. 454

WACHOVIA BANK & TRUST CO. v. WADDELL et al.

No. 112

Supreme Court of North Carolina.

Nov. 21, 1951

Francis J. Heazel, Asheville, for plaintiff appellant.

Woodson & Woodson, Salisbury, for defendant Vaughn A. Waddell.

J. Y. Jordan, Jr., Asheville, for defendants Mary W. Jordan, Francis C. Jordan, Mary Jordan, Janet Jordan Jacobs and husband, R. L. Jacobs.

Andrew Joyner, Jr., Greensboro, for defendant Kate Waddell.

Tench C. Coxe, Jr., and Adams & Adams, all of Asheville, for defendants Ralph E. Lee and Stephen R. Adams.

Kingsland Van Winkle, Asheville for defendants Thorton Jordan and all the bodily heirs of Francis C. Jordan and Mary Jordan not now in esse.

J. M. Horner, Jr., Asheville, for defendants Lynn Barnard Jacobs and all unknown bodily heirs of defendants Francis C. Jordan and Mary Jordan.

BARNHILL, Justice.

This is not a case in which the parties seek to have a court of equity approve a family settlement of differences arising in respect of an estate in the course of its administration. Neither is it a cause in which the first takers seek to alter or modify the terms of a trust to the possible disadvantage of the ultimate takers. It is true the trusts created by the will are to some extent adversely affected for the reason the widow takes under the law one-half of the personal estate rather than the one-third she would have received as a beneficiary under the will. But this adverse effect arises out of the fact the widow elected to do what she had a legal right to do, and not out of any contingency or emergency unforeseen by the testator. Hence a number of the decisions cited in the briefs on the original appeal and now relied on by the parties are not in point.

The widow, upon filing her dissent to the will, became, eo instante, vested with title to all the property of her deceased husband allowed her by statute as surviving spouse. To the extent of her right to one-half of the personal property belonging to the estate and to an allowance for a year's support, she became and is a claimant against the estate. As widow she is entitled to a life estate in one-third of the real estate of which her husband was seized during coverture, and the trustee must account to her for the income therefrom to the extent of her interest.

Therefore, this proceeding, in the first instance, is nothing more than a petition for the approval by the court of a settlement of these claims in a manner alleged to be to the best interest of all the parties.

On its appeal here from the order of the court below approving the proposed settlement and instructing the plaintiff in respect to certain matters affecting the administration of the estate, the plaintiff poses these questions for consideration and decision:

1. Did the court below have authority to approve and direct the consummation of the agreement settling the year's allowance and dower claims of the widow and, if so, should its order in that respect be affirmed?

2. Does the plaintiff trustee take the residue of the estate, after satisfaction of the widow's claim to her distributive share of the personal property, her year's allowance, and her dower, for the benefit of the trusts created by the will, or only two-thirds thereof, and if only two-thirds, does the remaining one-third pass as undevised property?

3. Is the widow entitled to dower in the contingent remainder interest of the testator in the property devised in the will of Mary W. Waddell, and, if so, does such property interest pass to the trust estates upon the consummation of the contract with the widow?

4. Did the court below correctly instruct and advise plaintiff with respect to the payment of Federal Estate and North Carolina Inheritance taxes?

1. The settlement. It is asserted that the widow's maximum allowance for a year's support, calculated as provided by law, G.S. § 30-31, would approximate $38,000. She has agreed to accept $22,000. The court below found this sum to be reasonable and proper. Its jurisdiction to make the allowance is statutory. G.S. § 30-27; Drewry v. Raleigh Savings Bank & Trust Co., 173 N.C. 664, 92 S.E. 593.

The commuted value of the widow's dower interest in the real property of plaintiff's testator is more than $50,000. The settlement contemplates the payment of $38,500 in full satisfaction thereof. The widow has consented to accept the agreed amount, plus payment of her year's allowance, on condition she is paid by the conveyance of the income-producing real property designated and described in the contract and in the judgment of the court below. The presiding judge, after a full hearing and careful consideration of all the facts, has found and concluded that this proposed settlement is to the best interests of the estate of the testator and of all the beneficiaries of the trusts created in the will.

Many reasons might be advanced in support of this conclusion. These we need not now discuss. Suffice it to say that the matter of the approval of the settlement rested in the sound discretion of the court below and no reason is made to appear why its judgment in this respect should not be affirmed. G.S. § 28-147; Jones v. Griggs, 223 N.C. 279, 25 S.E.2d 862; Edney v. Matthews, 218 N.C. 171, 10 S.E.2d 619; In re Estate of Poindexter, 221 N.C. 246, 20 S.E.2d 49, 149 A.L.R. 1138.

'* * * the Superior Court in term is by statute constituted a forum for the settlement of controversies over estates, C.S. § 135, and the power of the Superior Court to entertain administration suits and for the settlement of estates is well recognized.' Jones v. Griggs, supra [223 N.C. 279, 25 S.E.2d 864.] and cases cited.

And in cases of this type, where trusts are affected, the authority of the executor and trustee is involved, and controverted questions of law have arisen, a petition by the executor and trustee for judicial direction is an approved method of procedure for presenting the questions at issue to the judge for consideration and decision. In re Estate of Poindexter, supra, and cases cited.

2. Disposition of the residue of the estate. The will contains a plan or scheme for the disposition of the testator's property entirely consistent and harmonious in all its parts. There would be no difficulty in its construction or execution but for the derangement of the plan caused by the dissent of the widow. But it is a settled principle that the will shall be so construed that the dissent of the widow shall affect the devisees and legatees to the least possible degree, and that the general scope or plan of distribution to be carried out and effectuated so far as possible. 'The dissent may defeat some of the arrangements made by the will, and accelerate the time of enjoyment of some of the legacies and devises, but it does not affect the construction of the will.' Pritchard On Wills and Administration, sec. 766; Baptist Female University of North Carolina v. Borden, 132 N.C. 476, 44 S.E. 47, 1007; In re Povey's Estate, 271 Mich. 627, 261 N.W. 98, 99 A.L.R. 1183; 2 Page On Wills, 2d Ed., sec. 1224; 57 A.J. 1054, § 1549.

It is therefore generally held that a widow's election to take against the husband's will does not, except as it may reduce the corpus of the estate, divert the remainder from its course of distribution. Spaulding v. Lackey, 340 Ill. 572, 173 N.E. 110, 71 A.L.R. 660; Second Nat. Bank v. Second Nat. Bank, 171 Md. 547, 190 A. 215, 111 A.L.R. 711.

Where there is a will there is a presumption against partial intestacy, Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369; Van Winkle v. Berger, 228 N.C. 473, 46 S.E.2d 305; Holmes v. York, 203 N.C. 709, 166 S.E. 889, and the courts in construing a will do not search for a meaning which will nullify it in whole or in part, Johnson v. Salsbury, 232 N.C. 432, 61 S.E.2d 327, but adopt that construction which will uphold the will in all its parts if such course is consistent with established rules of law and the intention of the testator. Johnson v. Salsbury, supra; Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231.

'The objective of construction is to effectuate the intent of the testator as expressed in his will, for his intent as so expressed is his will.' Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888, 890. This is the dominant and controlling rule of testamentary construction. Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705. All other accepted canons of construction serve not to restrict or restrain the judicial mind but to aid and guide it in the discovery of the intention of the testator. 57 A.J. 732, sec. 1135.

But let us here interpolate for the...