Wachovia Bank & Trust Co. v. Stevenson

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370 (N.C. 1928)
• Decision Date: 12 September 1928
• Docket Number: 345.
• Parties: WACHOVIA BANK & TRUST CO. v. STEVENSON et al.

144 S.E. 370

196 N.C. 29

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

No. 345.

Supreme Court of North Carolina

September 12, 1928

Appeal from Superior Court, Forsyth County; Stack, Judge.

Application by the Wachovia Bank & Trust Company, administrator with the will annexed of A. L. Stevenson, deceased, to the superior court of Forsyth county for determining and identifying the beneficiaries under the will. From a decree designating the beneficiaries thereunder, Joe Stevenson and another appeal. Affirmed.

Legacy to certain persons if living, or their legal representatives if not, required distribution per capita among those living and per stirpes among representatives.

W. T Wilson, of Winston-Salem, O. E. Snow and W. R. Badgett, both of Pilot Mountain, Geo. C. Sweeten, of Baltimore, Md., and Graves & Graves and F. L. Webster, all of Winston-Salem, for appellants.

Geo. O Hege, of Winston-Salem, for R. C. Wrights and Will Wrights.

W Reade Johnson, of Winston-Salem, for T. W. Terry.

Efird & Liipfert, of Winston-Salem, and Raper & Raper, of Lexington, for J. J. Mock.

ADAMS J.

A. L. Stevenson died on February 17, 1925, leaving a will which thereafter was duly admitted to probate in Forsyth county. He left surviving him a widow, now deceased, but no children. The plaintiff is the administrator of his estate with the will annexed; the defendants are legatees and devisees or distributees and heirs at law of the testator and of his deceased wife. The suit is prosecuted as an application to a court of chancery for the purpose of determining the identifying the beneficiaries described in the fifth item of will. Freeman v. Cook, 41 N.C. 373; Alsbrook v. Reid, 89 N.C. 151; Commercial Nat. Bank of Charlotte v. Alexander, 188 N.C. 667, 125 S.E. 385; Ernul v. Ernul, 191 N.C. 347, 132 S.E. 2; Wachovia Bank & Trust Co. v. Edwards, 193 N.C. 118, 136 S.E. 342.

Items 1 and 5 are as follows:

"Item 1. I will and devise to my beloved wife, Emma A. Stevenson, all my real estate and personal property of every description whatsoever to have and use the same during her natural lifetime with full power to dispose of such real estate and personal property or money as may be necessary for her comfortable maintenance and support, except such disposition of my property as is hereinafter made and set out in this will."

"Item 5. At the death of my wife I will and devise that my entire estate, real and personal, be converted into cash and after the payment hereinbefore enumerated, that is $2,000 to the board of provincial elders of the Moravian Church and the further sum of $2,500 to be paid to the board of trustees of the Fourth Street Christian Church, that all the funds arising from said sale be distributed as follows: To my brothers and sisters, if living, if not living, to their legal representatives; to the brothers and sisters of my wife if living, or if not living to their legal representatives."

In construing the fifth item the trial judge held that it was the intention of the testator that all the property therein described should be converted into cash, and that the proceeds, after deduction of the payments therein directed, should be distributed per capita among the living brothers and sisters, both of the testator and of his deceased wife, and per stirpes among the legal representatives of the deceased brothers and sisters of the testator and of his deceased wife. Joe Stevenson and J. C. Salley, respectively a brother and a sister of the testator, excepted and appealed. It will be seen, therefore, that the question is whether the judgment shall be affirmed, or whether under the terms of item 5 the living brother and the living sister of the testator are entitled to all the property in controversy.

As the first item passes a life estate (Carroll v. Herring, 180 N.C. 369, 104 S.E. 892), it is necessary first to inquire whether the limitation after the life estate set out in item 5 is vested or contingent; that is, whether the "brothers and sisters" or "their legal representatives" are determinable at the death of the testator or at the death of the life tenant; and the answer depends upon the question whether the words "if living" relate to the first of these events or to the second. If the words of survivorship are to be referred to the death of the testator, the remainder is vested; if they are to be referred to the death of the life tenant, the remainder is contingent. In Cripps v. Wolcot, 56 Eng. Reports, 613, it was said that, if no special intent be found in the will, the survivorship will be referred to the period of division; that, if no previous interest is given, the period of division is the death of the testator, and the survivors at his death will take the whole legacy; but, if a previous life estate is given, the period of division is the death of the life tenant, and the survivors at such death will take the whole legacy-the enunciation of a principle which has often been applied in our own decisions. Jourdan v. Green, 16 N.C. 271; Knight v. Knight, 56 N.C. 167; Vass v. Freeman, 56 N.C. 221, 69 Am. Dec. 734; Britton v. Miller, 63 N.C. 268; Robinson v. McDairmid, 87 N.C. 455; Wise v. Leonhardt, 128 N.C. 289, 38 S.E. 892; Jenkins v. Lambeth, 172 N.C. 466, 90 S.E. 513.

The clause construed in Witty v. Witty, 184 N.C. 375, 114 S.E. 482, contained a devise of land to the testator's wife for life, with a provision that, in the event of the wife's death or of her second marriage, the devised land should be sold by public auction to the highest bidder and the proceeds divided among the testator's heirs. It was held that the will imported a division among those who were the heirs of the testator at his death, though they were not to enjoy the actual possession during the lifetime of the mother. The opinion, however, points out the distinction between the clause therein construed and devises in which the testator vests the ulterior disposition after a particular estate in persons surviving or living at the death of the first taker, or in which he indicates a purpose to postpone the limitations until the expiration of the particular estate.

In Gill v. Weaver, 21 N.C. 41, the facts were that the testator had given his property to his wife for her sole use until his youngest living child should be of age, provided his wife lived. If she died before the youngest child was of age, the property was to be divided among all his living children, with one exception, and if she lived until the event occurred she was to have an equal share of the estate. It was held that the testator had put the wife and the children on the same...