Wachovia Bank & Trust Co. v. Dodson, 377

• Court: North Carolina Supreme Court
• Writing for the Court: PARKER; Stacy
• Citation: Wachovia Bank & Trust Co. v. Dodson, 131 S.E.2d 875, 260 N.C. 22 (N.C. 1963)
• Decision Date: 19 July 1963
• Docket Number: No. 377,377
• Parties: WACHOVIA BANK & TRUST COMPANY, Executor of Hattie L. Pepper, v. Nannie E. DODSON, Executrix of Lizzie Pepper (Mrs. J. C.) Dodson et al.

Page 875

131 S.E.2d 875

260 N.C. 22

WACHOVIA BANK & TRUST COMPANY, Executor of Hattie L. Pepper, v. Nannie E. DODSON, Executrix of Lizzie Pepper (Mrs. J. C.) Dodson et al.

No. 377

Supreme Court of North Carolina.

July 19, 1963

William Joslin, Raleigh, for defendant appellant, Alton Donnie Douglas, Ancillary Executor of Estate of Mrs. A. P. Douglas.

Deal, Hutchins & Minor, by Edwin T. Pullen, Winston-Salem, for defendant appellees, Louise Pepper McClung, Executrix of T. R. Pepper, Louise Pepper McClung, Francis D. Pepper, Hiero L. Taylor, Betty T. Webb, and Mallie D. Pepper, Executrix of Thomas Otto Pepper.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Robert G. Stockton and R. C. Vaughn, Jr., Winston-Salem, for defendant appellees, Nannie E. Dodson, Executrix of Lizzie Pepper (Mrs. J. C.) Dodson and Nannie E. Dodson.

PARKER, Justice.

Defendant appellant assigns as error that the court erred in adjudging that the legacies bequeathed by Item Fourth of the will and by Item First of the codicil thereto are specific legacies, and carried with them all accretions resulting from stock splits after the death of the testatrix, and that the legatees named in these instruments became vested of the stock bequeathed them upon the death of the testatrix but with the enjoyment of said stock postponed until the death of the last to die of Mrs. A. P. Douglas or Nannie Pepper, and that these legacies carried with them all accretions in the form of cash dividends (directly attributable to the stock designated in said specific bequests) between the time of the death of the testatrix and the time of the death of Mrs. A. P. Douglas.

Defendant appellant contends that the bequests of Reynolds Tobacco Company stock in Item Fourth of the will and in Item First of the codicil thereto are demonstrative legacies, and thus do not carry with them all accretions by way of stock dividends or stock splits and cash dividends that have accrued after the death of the testatrix.

A will speaks only from the death of the testator. Yount v. Yount, 258 N.C. 236, 128 S.E.2d 613; Coffield v. Peele, 246 N.C. 661, 100 S.E.2d 45. 'A codicil is a supplement to a will, annexed for the purpose of expressing the testator's afterthought or amended intention. Green v. Lane, 45 N.C. 102, 113. It is to be construed with the will itself, and the two are to be considered as constituting a single instrument. Darden v. Matthews, 173 N.C. 186, 91 S.E. 835.' Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659.

It is hornbook law that the primary duty of the court is to discover the testatrix's intent as expressed in her will and her codicil thereto, and if it is not in contravention of some established rule of law or public policy, such intention must be given effect. Entwistle v. Covington, 250 N.C. 315, 108 S.E.2d 603; Smith v. Mears, supra. That must be discovered from the language she used in the will and her codicil thereto, which in cases of ambiguity may be interpreted in the light of conditions existing at the time the will was made and at the time the codicil thereto was made. Strong's N.C.Index, Vol. 4, Wills, secs. 27 and 28.

Item Fourth of the will reads:

'Upon the death or marriage of both of my said sisters, Mrs. A. P. Douglas and Miss Nannie Pepper, I give and bequeath to my sister, Mrs. J. C. Dodson, seventy-five shares of my Common B Stock of the R. J. Reynolds Tobacco Company and I give and bequeath to the children of Mrs. J. C. Dodson (there being seven living at this time) seven shares each of my Common B stock of The R. J. Reynolds Tobacco Company.'

Item First of the codicil thereto reads:

'I hereby alter section 'Fourth' of said will by adding in said section my brother-in-law, J. C. Dodson, to whom I give and bequeath twenty-five shares of my Common B Stock of the R. J. Reynolds Tobacco Company. This out of love and affection for him, and in appreciation of his kindness to me.'

Stacy, C. J., speaking for a unanimous Court, said in Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356:

'A 'specific legacy' is a bequest of a specific article, distinguished from all others of the same kind, pointed out and labeled by the testator, as it were, for delivery to the legatee, such as a particular horse, a piece of silver, or money in a certain purse or chest, or a particular corporate stock, or a particular bond or other obligation for the payment of money. Shepard v. Bryan, supra [195 N.C. 822, 143 S.E. 835]. 'If the thing bequeathed is, by the terms of the will, individuated so that it is distinguishable from all others of the same kind, it is a 'specific legacy." Leaming, V. C., in Kearns v. Kearns, 77 N.J.Eq. 453, 76 A. 1042, 140 Am.St. Rep. 575.

'A demonstrative legacy is a bequest of money or other fungible goods, payable out of or charged upon a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fail, and so described as to be indistinguishable from other things of the same kind. Shepard v. Bryan, supra; 28 R.C.L. 292.'

At the time of testatrix's death, she owned 575 shares of Common B stock of R. J. Reynolds Tobacco Company and 100 shares of the common capital stock of the Baltimore and Ohio Railway Company. In Item Fourth of her will and in Item First of her codicil thereto, she gives to the legatees therein named specified numbers of shares 'of my Common B Stock of the R. J. Reynolds Tobacco Company,' thereby naming the particular corporate stock she bequeathed these legatees. From a consideration of the whole will and the whole codicil thereto, and the attendant circumstances at the time these instruments were made, we are satisfied that these legacies are specific, and that it was the clear intent of the testatrix to make these legacies specific.

Our opinion that these are specific legacies finds support in our case of Smith v. Smith, 192 N.C. 687, 135 S.E. 855, in which the facts are quite similar. M. F. Nesbit in Item 4th of his will bequeathed and devised to his wife all the residue of his estate to hold during her natural life, the income to be hers absolutely. In Item 5th he directed that all his property shall remain as it now is under the direction of his wife, so long as she shall live, and after her death, his property shall be distributed as provided in the items following. In Item 10th he bequeathed unto Nannie Lee Kerr Nesbit 20 shares of the capital stock of the Mooresville Cotton Mills, Mooresville, N. C.; in Item 11th ten shares of the same stock to Alice Lee Nesbit Neikirk; in Item 12th ten shares of the same stock to Fred Nesbit Porter; in Item 13th ten shares of the same stock to Barron P. Smith; and in Item 14th ten shares of the same stock to Lee Parker. It appears from the judgment of the trial judge that the ten shares of stock bequeathed to Lee Parker were revoked and the said ten shares of stock by a codicil to the will were bequeathed to F. E. Nesbit. In Item 19th he provides that the residue of his estate, after the death of his wife, shall be equally divided among persons specified. At the time of his death in 1907, the testator owned 60 shares of the capital stock of the Mooresville Cotton Mills. In January 1917, and subsequently thereto, Mooresville Cotton Mills declared stock dividends which were delivered to the executor, until the executor held 360 shares of common stock of the mill and 20 shares of its preferred stock. Upon the death of the widow in 1925, the legatees to whom the stock was bequeathed by the testator in items 10th, 11th, 12th, and 13th of the will, and F. E. Nesbit who by codicil to the will received the ten shares of stock bequeathed to Lee Parker in Item 14th of the will, claimed the stock together with the stock dividends. The residuary legatees claimed the stock dividends upon the theory that the legacies were general and not specific. The Court in closing its opinion said: 'Our conclusion is, upon the whole record, that the legacies of stock in the Mooresville Cotton Mills were specific, and that the stock dividends accruing upon said shares belong to the legatees named.'

Our opinion that these are specific legacies also finds support in our case of Bost v. Morris, 202 N.C. 34, 161 S.E. 710. In this case Item 2 of testator's will reads: 'I give and bequeath to my sister, Minnie E. Morris, if she survives me, ten thousand dollars in stocks in an incorporated company or companies to be selected by her, at its then par value.' In Item 6 of his will the testator gave and devised all the rest and residue of his estate in fee simple to certain named beneficiaries. The executor qualified and on 14 December 1927 delivered to Minnie E. Morris, the legatee in Item 2, a list of the stocks found in the lock box of the deceased. On the stock selected by Minnie E. Morris, the dividends amounted to $431. The Court held that upon the exercise of the power of selection of the stock by the legatee, Minnie E. Morris, the bequest was rendered specific and the legatee was entitled to all dividends declared thereon from the date of the testator's death.

Our conclusion also finds support in the case of Butler v. Dobbins, 142 Me. 383, 53 A.2d 270, 172 A.L.R. 361. In this case, provisions of a will of a testatrix who owned sixty-five shares of stock of a bank bequeathing to each of two daughters of her late husband 'twenty-one (21) shares of the capital stock held by me' in the bank, with a residuary clause in favor of her brother, show an intention to make specific bequests to the daughters, and to divide the stock as nearly equally as feasible between them and her brother.

This is said in Annotation 116 A.L.R. 1130:

'* * * specific legacies or devises are severed from the general estate of the testator immediately upon his death, and, in the absence of any provision to the contrary in the will, they become payable at the death of the testator. Consequently, according to...