Wachovia Bank & Trust Co. v. Lambeth

• Decision Date: 25 May 1938
• Docket Number: 682.
• Parties: 213 N.C. 576, 117 A.L.R. 117 v. LAMBETH et al. WACHOVIA BANK & TRUST CO.
• Court: North Carolina Supreme Court

197 S.E. 179

213 N.C. 576, 117 A.L.R. 117

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

No. 682.

Supreme Court of North Carolina

May 25, 1938

Appeal from Superior Court, Guilford County; Frank S. Hill, Special Judge.

Suit by the Wachovia Bank & Trust Company, executor of the last will and testament of R. L. Lambeth, deceased, against Esther D Lambeth and others for construction of the will in order to determine the payment of inheritance taxes. From a decree directing the inheritance taxes to be paid out of the corpus of the estate without apportionment against the estates of the named beneficiaries for life, certain of the defendants appeal.

Affirmed.

An executor upon whom the will casts the performance of a duty may, when he needs instruction, bring a suit in equity to obtain a construction of the will.

Paragraph 5 of the Complaint of plaintiff is as follows:

"5. That in said will, to which reference is hereby specifically had, the said R. L. Lambeth directed the plaintiff, his executor and trustee, as follows (Paragraph 2 of Item 3 of said will):

'To pay out of the net income of my estate $400.00 per month to my wife, Essie D. Lambeth; $200.00 per month to my daughter Caroleen Lambeth Keith; $200.00 per month to my son Harry Lee Lambeth; $100.00 per month to my daughter Rose Lambeth Froemke, and $100.00 per month to my grandson Harry Leigh Derby, III, and at the end of the first calendar year after my death, in addition to the above, to pay over out of the net income of my estate one-fourth of the remainder of said net income to my wife, Essie D. Lambeth, one-fourth to my daughter Caroleen Lambeth Keith; one-fourth to my son Harry Lee Lambeth; one-eighth to my daughter Rose Lambeth Froemke, and one-eighth to her son, my grandson, Harry Leigh Derby, III. Thereafter, the same procedure shall be followed as to monthly income to be paid and annual distribution to be made during the natural life of each of the said beneficiaries.

(a) In the event of the death of my wife, Essie D. Lambeth, the monthly income to her hereinbefore provided shall cease, and the income which would have been paid to her if she had lived shall be divided into three parts, one-third to be added to the income of Caroleen Lambeth Keith; one-third to be added to the income of Harry Lee Lambeth; and one-third to be divided into two equal parts, one-half of the same, that is, one-sixth of the whole, to be added to the income of Rose Lambeth Froemke, and one-sixth of the whole to be added to the income of Harry Leigh Derby, III, and at the end of each calendar year the same distribution made as to the additional net income as hereinabove provided.

(b) In the event of the death of Caroleen Lambeth Keith, the monthly income and the annual distribution of income shall be continued for the benefit of and be paid to her bodily heirs during the life or lives of her bodily heirs in being at the time of her death, and to continue during the life or lives of said bodily heirs. In the event of the death of all of her bodily heirs, then the said income and trust herein created for their benefit shall be and become a part of my estate and distributed in accordance with the laws of the State of North Carolina.

(c) In the event of the death of Harry Lee Lambeth, the monthly income and the annual distribution of income shall be continued for the benefit of and be paid to his bodily heirs during the life or lives of his bodily heirs in being at the time of his death, and to continue during the life or lives of said bodily heirs. In the event of the death of all of his bodily heirs, then the said income and trust herein created for their benefit shall be and become a part of my estate and distributed in accordance with the laws of the State of North Carolina.

(d) In the event of the death of Rose Lambeth Froemke the monthly income and the annual distribution of income shall be continued for the benefit of and be paid to her bodily heirs during the life or lives of her bodily heirs in being at the time of her death, and to continue during the life or lives of said bodily heirs. In the event of the death of all of her bodily heirs, then the said income and the trust herein created for their benefit will be and become a part of my estate and distributed in accordance with the laws of the State of North Carolina.

(e) In the event of the death of Harry Leigh Derby, III, the monthly income and the annual distribution of income shall be continued for the benefit of and be paid to his mother, Rose Lambeth Froemke, if living, during the remainder of her life, and then, at her death, to the bodily heirs of the said Harry Leigh Derby, III during the life or lives of his bodily heirs in being at the time of the death of the said Rose Lambeth Froemke, and to continue during the life or lives of said bodily heirs. In the event that the said Rose Lambeth Froemke shall have predeceased the said Harry Leigh Derby, III, and be not living at the time of the death of the said Harry Leigh Derby, III, then, in the event of the death of the said Harry Leigh Derby, III, the monthly income and the annual distribution of income shall be continued for the benefit of and be paid to his bodily heirs during the life or lives of his bodily heirs in being at the time of his death, and to continue during the life or lives of said bodily heirs. In the event of the death of all of his bodily heirs, then the said income shall be and become a part of my estate and distributed in accordance with the laws of the State of North Carolina."'

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