Wachovia Bank & Trust Co. v. Miller

• Court: North Carolina Supreme Court
• Citation: Wachovia Bank & Trust Co. v. Miller, 25 S.E.2d 177, 223 N.C. 1 (N.C. 1943)
• Decision Date: 07 April 1943
• Docket Number: 378.
• Parties: WACHOVIA BANK & TRUST CO. v. MILLER et al.

25 S.E.2d 177

223 N.C. 1

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

No. 378.

Supreme Court of North Carolina

April 7, 1943

Petition by plaintiff trustee for advice and instruction.

There was born to Mrs. Fannie E. Corriher, late of Rowan County two children, a daughter Zelia Corriher, who married defendant B.O. Edwards, and a son Everette Corriher. Zelia Corriher Edwards predeceased Mrs. Corriher, leaving surviving two children John Reid Edwards and Eugenia Edwards.

Mrs Corriher died leaving a last will and testament in which she made certain individual bequests and devises which included the home place to her son and her Asheville real property to her grandchildren. The remaining pertinent part of the will is as follows:

"The balance of my estate stocks bonds or real estate where ever located I place in the hands of the Wachovia Bank & Trust Co. or the Commerce Bank Trust Co. of Ashville. Of this fund I bequeath to my two grand children John Reid & Eugenia 60 per cent of the above stocks and to Everette Corriher (40) forty per cent. Eugenia Edwards to receive the interest or div. on her part of stock when she arrives at the age of 25 if she proves herself capable of handling it. John Reid's portion of the estate to be kept by the above Trust Co. and the interest to be paid to him by The Trust Co. when he is 25 years old. And the principal to be paid to Eugenia & John Reid when they are 35 years old if they prove themselves capable of handling it.

"To my son Everette when my executor shall be satisfied that he has given up the use of intoxicating drinks after two -2- years, I will that the interest be turned over to him, and the principal be held by the Trust Co. as long as he lives and then to be given to John Reid and Eugenia Edwards, unless Everett marries and has bodily heirs. Then the estate is to be held by the Trust Co. for them, unless he has shown that he has given up the use of strong drink after 5 years.

"I will that should Eugenia & John Read Edwards not live and not have bodily heirs that their part of the estate shall be divided between Everette and my sisters who are living at that time. Everett to receive half and to be held by the Trust Co. and my sisters the other half and their part to be divided equally among themselves."

A codicil named plaintiff Trust Company as trustee.

John Reid Edwards died intestate on or about 8 November, 1941 without surviving wife or issue and being less than 35 years of age at the time of his death. Thereupon a controversy arose as to whether the limitation over contained in the will became effective at his death and if not as to who became seized and possessed of his interest in the trust estate. The plaintiff trustee instituted this action to obtain instructions as to the disposition it should make of said estate.

When the cause came on to be heard, the court below concluded that the limitation over became operative as to one-half of the trust estate devised for the use of the grandchildren upon the death of John Reid Edwards, and that, therefore, said one-half should be divided into equal shares and distributed 50% to Everette Corriher and 50% to the surviving sisters of the testatrix, towit: Ella Miller, Hester A. Suttlemyre, Laura Shuford and Mildred Washburn. Defendant Eugenia Edwards McKenzie, B.O. Edwards, individually and as administrator of the estate of John Reid Edwards, excepted and appealed.

Williams & Cocke, of Asheville, for defendants, appellants.

Walter H. Woodson, Jr., and Walter H. Woodson, both of Salisbury, for defendants Mrs. Ella Miller, Mrs. Hester A. Suttlemyre, Mrs. Mildred Washburn and Mrs. Laura Shuford, appellees.

Linn & Linn, of Salisbury, for Wachovia Bank & Trust Co., trustee under the will of Fannie E. Corriher, plaintiff, appellee.

BARNHILL Justice.

While Everette Corriher did not appeal, he, in his answer, takes the position that at the death of John Reid Edwards his interest in the estate vested in the son and in the granddaughter and that if he, Everette, took no part thereof then it vested in the granddaughter Eugenia.

The granddaughter Eugenia Edwards McKenzie and B.O. Edwards, individually and as administrator, assert that John Reid's interest in the trust estate vested in Eugenia and if not then in Eugenia and the son Everette. The four surviving sisters, collateral kin, contend that as to one-half of the devise to the grandchildren the executory bequest or ulterior limitation over became effective as to one-half of the gift in trust to the grandchildren upon the death of John Reid and that, therefore, they jointly take one-half and Everette takes the remainder.

These conflicting contentions raise this question: Was it the intent of the testatrix that the executory limitation over of the gift to the grandchildren John Reid and Eugenia should take effect and become operative only in the event both died without bodily heirs, so that the gift would go over as a whole?

The intent of the testatrix, 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. Patterson v. McCormick, 181 N.C. 311, 107 S.E. 12; Smith v. Creech, 186 N.C. 187, 119 S.E. 3; Wells v. Williams, 187 N.C. 134, 121 S.E. 17; Edmondson v. Leigh, 189 N.C. 196, 126 S.E. 497; McCullen v. Daughtry, 190 N.C. 215, 129 S.E. 611; Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Walker v. Trollinger, 192 N.C. 744, 135 S.E. 871.

The intention of the testatrix need not be declared in express terms in the will, but it is sufficient if the intention can be clearly inferred from particular provisions of the will, and from its general scope and import. The courts will seize upon the slightest indications of that intention which can be found in the will to determine the real objects and subjects of the testatrix's bounty. 28 R.C.L. 218. And it is generally held that, in seeking to discover this intention, two presumptions prevail--(1) against intestacy, Case v. Biberstein, 207 N.C. 514, 177 S.E. 802, and cases cited; 28 R.C.L., 227; 69 C.J. 91, sec. 1147; and (2) in favor of the first taker, Dunn v. Hines, 164 N.C. 113, 80 S.E. 410; Citizens Bank v. Murray, 175 N.C. 62, 94 S.E. 665; Smith v. Creech, supra; 69 C.J., 103.

The will under consideration was, in some respects, ineptly drawn and leaves room for doubt as to the real intention of the testatrix. The natural result is the controversy which has now arisen.

While it is lacking in exactness of expression and attention to details that might be expected in a paper writing disposing of an estate of the size here involved, it does contain indicia which we think point with reasonable certainty to the intent of the testatrix, and to the ultimate purpose she was seeking to accomplish.

It discloses an understanding of the difference between a gift that is several or in common and one that is joint. After making certain specific bequests, she gave to her grandchildren the furniture which belonged to their mother with directions for division. She also devised to them her Asheville real estate "to be divided". She likewise bequeathed to them a china dinner set--a gift that could not be divided without destroying the value of the gift itself. Then when she came to the residue of her estate she recognized her two lines of lineal descendants and divided it accordingly--into two shares, 60% to one line, the grandchildren, and 40% to the other line, her son.

The gift to the grandchildren is "to my grand children John Reid & Eugenia 60 per cent ***. The principal to be paid to Eugenia & John Reid when they are 35 years old ***. Should Eugenia & John Reid not live and not have bodily heirs then their part of the estate shall be divided between Everette and my sisters".

Although she had made provision for the separation of income during the existence of the trust and had made devises to be divided, there is no provision for a division or for the separation of interest in the principal estate given the grandchildren. It is to them to be received by them when they become 35 years of age and to go over in the event they shall die without bodily heirs. In that event their part is to be divided between her son and collateral heirs.

It is apparent then that the testatrix intended the gift in trust to the grandchildren as representatives of one line of descent, to go over at one time as a whole in the event both should die, neither having bodily heirs. The limitation over cannot take effect unless both die without bodily heirs.

This is a logical conclusion reasonably justified by the language used. Naturally her primary concern was to provide for her lineal descendants. This she did. It is equally natural that she should make sure that the gift to neither line should fail so long as there remained anyone in that line capable of taking.

This conclusion is in accord with the decisions of this court. Coffield v. Roberts, 35 N.C. 277; Picot v. Armistead, 37 N.C. 226; Kirkman v. Smith, 174 N.C. 603, 94 S.E. 423; Leggett v. Simpson, 176 N.C. 3, 96 S.E. 638; Pratt v. Mills, 186 N.C. 396, 119 S.E. 766; Lamm v. Mayo, 217 N.C. 261, 7 S.E.2d 501. See also Henry v. Henderson, 103 Miss. 48, 60 So. 33; Kramer v. Sangamon Loan & Trust Co., 293 Ill. 553, 127 N.E. 877.

In the Leggett case, which is almost identical, the devise was to Elizabeth Bateman and Charlotte Baxter, nieces, for life, and then "to the lawful children of my nieces [naming them] all the lands which I have loaned in a former item to my nieces [naming them] to have and to hold to them, in fee simple forever, at the death of my aforesaid nieces." The will further provided that "in the event that my nieces [naming them] should die without leaving any...