Wachovia Bank & Trust Co. v. Waddell

• Decision Date: 18 March 1953
• Docket Number: No. 101,101
• Court: North Carolina Supreme Court
• Parties: WACHOVIA BANK & TRUST CO. v. WADDELL et al.

Page 151

75 S.E.2d 151

237 N.C. 342

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

No. 101

Supreme Court of North Carolina.

March 18, 1953

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

Bernard, Parker & McGuire, Asheville, for Plaintiff-appellee.

BARNHILL, Justice.

Whether this action was open for a motion for an account and settlement of testator's estate under G.S. § 28-165 is not presented for decision. There was no objection or exception to the procedure adopted by the court below and, in any event, the material questions at issue were presented by the appeal from the clerk.

The objections and exceptions of appellant to the final account of plaintiff executor before the clerk and in the court below challenge both the reasonableness of the amount of commissions allowed plaintiff and the basis upon which the commissions were allowed. These exceptions raise two material questions for the clerk, in the first instance, and the judge, on appeal, to decide to wit: (1) What is the meaning of the word 'receipts' as used in Item Sixteen of the will limiting the amount of commissions to be paid the executor, and (2) what amount should be paid to plaintiff in compensation for its services in settling the estate of the testator?

A testator may stipulate in his will the compensation to be paid the person appointed executor with power to settle his estate. When this is done the provisions of the will are binding on all interested parties, Lightner v. Boone. 221 N.C. 78, 19 S.E.2d 144. But an executor has no right to fix and determine the compensation to be received by him. In the absence of a provision in the will fixing the compensation of the executor, it is the prerogative of the clerk of the Superior Court, acting as probate judge, to make an allowance to an executor, by way of commissions, for services rendered in the settlement of the estate committed to his care, in no event, however, to exceed 5% of receipts and disbursements. And in determining the amount to be allowed, the clerk must "consider the time, responsibility, trouble and skil l involved in the management of the estate. ' G.S. § 28-170; Grant v. Reese, 94 N.C. 720; Battery Park Bank v. Western Carolina Bank, 126 N.C. 531,36 S.E. 39; In re Hege, 205 N.C. 625, 172 S.E. 345.

Here the will does not fix or purport to fix the compensation to be paid testator's executor as compensation for services in settling his estate. It merely fixes the maximum percentage on receipts and disbursements at 2 1/2%. It was, therefore, the duty of the clerk to make an allowance to plaintiff for services rendered as executor, subject to the maximum limitation stipulated in the will rather than the maximum fixed by statute. G.S. § 28-170; Lightner v. Boone, supra.

But in performing this duty it was necessary for the clerk to consider, determine, and abide by the meaning of the word 'receipts' as used by the testator in Item Sixteen of his will.

A will, as to its dispositive provisions, speaks as of the date of the death of the testator. But when the meaning of any part of a will is the subject of controversy, it is the prerogative of the court to construe the contested provision and declare the true meaning thereof. And in construing a will, or any part thereof, the discovery of the intent of the testator, as expressed in his will, is the dominant and controlling objective, 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. Schneider, 235 N.C. 446, 70 S.E.2d 578, and cases cited.

In ascertaining the intent of the testator, the will is to be considered in the light of the conditions and circumstances existing at the time the will was made. Scales v. Barringer, 192 N.C. 94, 133 S.E. 410; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12.

'* * * the court should place itself as nearly as practicable in the position of the testator * * * at the time of the execution of the will.' In re Will of Johnson, supra [233 N.C. 570, 65 S.E.2d 15]. And ordinarily, words used in a will are to be construed as having the ordinary, natural, and customary meaning given them at the time of their use, unless it clearly appears that they were used in some other sense. Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830; Citizens Nat. Bank v. Phillips, 235 N.C. 494, 70 S.E.2d 509; Sharpe v. Isley, 219 N.C. 753, 14 S.E.2d 814; In re Will of Johnson, supra. If words at the time of their use had a wellknown legal or technical meaning, they are to be so construed unless the will itself discloses that another meaning was intended. Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231; Henry v....