Wachovia Bank & Trust Co. v. Schneider

• Decision Date: 30 April 1952
• Docket Number: No. 452,452
• Citation: 235 N.C. 446,70 S.E.2d 578
• Court: North Carolina Supreme Court
• Parties: WACHOVIA BANK & TRUST CO. v. SCHNEIDER et al.

Page 578

70 S.E.2d 578

235 N.C. 446

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

No. 452

Supreme Court of North Carolina.

April 30, 1952

A. L. Purrington, Jr., Raleigh, guardian ad litem for Nancy Elizabeth Schneider.

Manning & Joslin, Raleigh, for Mildred Patterson Beard and Francis F. Patterson.

Samuel R. Leager, Raleigh, guardian ad litem for all persons in esse and in posse not otherwise represented.

Brassfield & Maupin, Raleigh, for Robert H. Schneider.

Joseph B. Cheshire, Jr., Raleigh, guardian ad litem for unborn children of Nancy Elizabeth Schneider and for lineal descendants of Mary Patterson Schneider not now in being.

BARNHILL, Justice.

Did Robert P. Schneider, upon the death of his mother, become seized and possessed of a transmittible one-half interest in the trust estate devised in Item 3 of the will of Samuel F. Patterson, subject only to the provisions of the trust postponing the time of full enjoyment thereof? This is the primary question posed by this appeal. Since the widow, Nancy P. Patterson, is now dead and her interest in the trust estate has terminated, we may discuss the question without reference to her or her rights under the will.

If Item 3 of the will is lifted out of its context and considered apart from the will as a whole, the language there used generates very plausible, if not persuasive argument in support of an affirmative answer. The will considered in its entirety tends to point in the other direction. So then, there is sufficient ambiguity as to the purpose and intent of the testator and the meaning of the language used by him to invoke judicial construction. Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17.

Judicial construction is guided and controlled by well-recognized and established canons of construction, some of which must be invoked here.

The discovery of the intent of the testator as expressed in his will is the dominant and controlling objective of testamentary construction, for the intent of the testator as so expressed is his will. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651; Seawell v Seawell, 233 N.C. 735, 65 S.E.2d 369; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

In ascertaining the intent of the testator, all the provisions of the will must be examined in the light of the circumstances, including the state of the testator's family at the time the will was made. Heyer v. Bulluck, supra; Scales v. Barringer, 192 N.C. 94, 133 S.E. 410, and cases cited. The intent is to be gained from a consideration of the will in its entirety. Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Heyer v. Bulluck, supra; Brown v. Brown, 195 N.C. 315, 142 S.E. 4; Cannon v. Cannon, supra; Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613; Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625.

The intent of the testator, as expressed in the will, 'taking it by its corners' is the 'Polar star' guiding the Court in arriving at the proper construction of the language used in the will. Wachovia Bank Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177, 178, and cases cited.

The intention of the testator need not be declared in express terms. It is sufficient if it can be inferred from particular provisions of the will and from its general scope and import. Wachovia Bank & Trust Co. v. Miller, supra; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279. And greater regard is to be given to the dominant purpose of the testator than to the use of any particular words. Heyer v. Bulluck, supra; Wachovia Bank & Trust Co. v. Waddell, supra.

Likewise we must bear in mind the distinction between a vested and a contingent estate, for the one is transmittible while the other is not. "An estate is vested when there is either an immediate right of present enjoyment or a present fixed right of future enjoyment.' Patrick v. Beatty, 202 N.C. 454, 163 S.E. 572, 575; Curtis v. Maryland Baptist Union Assoc., supra [176 Md. 430, 5 A.2d 836, 121 A.L.R. 1516].' McQueen v. Branch Banking & Trust Co., 234 N.C. 737, 68 S.E.2d 831, 835. Conversely, when there is uncertainty as to the person or persons who are to take, the uncertainty to be resolved in a particular way or according to conditions existing at a particular time in the future, the devise is contingent. Scales v. Barringer, supra; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370; Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621.

'If there is uncertainty as to the person or persons who will be entitled to enjoy the remainder, or if a conditional element is made a part of the description of the remainder, it is contingent.' Scales v. Barringer, supra. [192 N.C. 94, 133 S.E. 413.]

In craftsmanship the will leaves much to be desired. In some repects it is ineptly drawn and it lacks exactness of expression and attention to details that might be expected in a paper writing disposing of an estate of the size here involved. Yet an examination of the instrument with the controlling rules of construction in mind makes it manifest that the testator intended to (1) keep his devise well within the rule against perpetuities, (2) limit the property which, in any event that might arise, should go to the two children by his former marriage to that specifically devised in the will, and (3) restrict the trust property devised in Item 3 to his lineal descendants of the blood of his surviving widow, upon the failure of which it is to be used for charitable purposes as provided in Item 4 of the will.

The devise in trust is purposely and cautiously restricted to those of his own blood and the blood of his wife Nancy who may be able to answer the roll call. And it is evident he intended that the devise should take effect according to the state of his family with reference to the second set of children at the time the division is to be made. The representatives of any deceased child who predeceased the life tenant take one share per stirpes. They take, however, if at all, as purchasers under the will and not by inheritance, as representatives of their deceased parent.

There is no gift of the trust estate to the children and grandchildren of his daughter Mary apart from the direction that the trust shall terminate and the property shall be divided at the end of the twenty-year period. Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713.

At the time the will was executed, the state of testator's family was such that there was a distinct possibility that those who are to share in the income after the death of his daughter Mary and those who may share in the final division are not identical. Only children of Mary are to receive the income pending the termination of the trust. Grandchildren are excluded by necessary implication. Yet grandchildren of the blood of the testator and his last wife are to share in the distribution, provided their ancestor predeceased Mary.

'In the event that my daughter, Mary B. Patterson shall die leaving children or grandchildren her surviving, then upon the expiration of the 20 year period succeeding her death as above provided, my estate shall be distributed equally among her children and the children of any one of her children who may have predeceased her, provided that her grandchildren shall receive only such portion as would have been received by their parent if living.'

Those who are to take the corpus are designated by class rather than by name. When the gift is to a class but the time of vesting is postponed beyond the date of the termination of the preceding life estate, members of the class in esse at the time of the termination of the preceding estate are possessed of the contingent right to take. However, the class opens up to admit members of the class thereafter born, and closes ranks so as to exclude members who die, prior to the date set for the vesting of the estate granted. Neill v. Bach, 231 N.C. 391, 57 S.E.2d 385; Smyth v. McKissick, supra.

If testator's daughter Mary should die without leaving a direct descendant capable of answering the roll call as provided in the will, the trust property is not to pass by inheritance...