Wachovia Bank & Trust Co. v. Edwards

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON, J.
• Citation: Wachovia Bank & Trust Co. v. Edwards, 193 N.C. 118, 136 S.E. 342 (N.C. 1927)
• Decision Date: 26 January 1927
• Docket Number: 567.
• Parties: WACHOVIA BANK & TRUST CO. et al. v. EDWARDS et al.

136 S.E. 342

193 N.C. 118

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

No. 567.

Supreme Court of North Carolina

January 26, 1927

Appeal from Superior Court, Buncombe County; Lane, Judge.

Proceeding by the Wachovia Bank & Trust Company, as trustee under the will of Gwyn Edwards, deceased, and another, against William Edwards and others, minors, by their guardian ad litem, and others. Judgment for plaintiffs, and defendants appeal. No error.

Will prohibiting sale of income-yielding realty held to empower trustee to sell nonincome-yielding realty, including home place devised to widow for life.

"The plaintiff Wachovia Bank & Trust Company seeks the advice and instruction of the court upon the following matters, to wit Is said Wachovia Bank & Trust Company, trustee, authorized and empowered by the terms and provisions of the will of Gwyn Edwards, deceased, to sell and convey in fee simple the remainder interest after the life estate of Annie May Duncan widow of Gwyn Edwards, and devisees of the life estate under said will, in and to the real estate, or any part thereof located at the intersection of Haywood road and Louisiana avenue, in the city of Asheville, Buncombe county, N. C., and known as the Gwyn Edwards home place? The complaint alleges that offers have been received for portions of said property which represent the reasonable and fair value thereof; that said property comprises about two acres of land, which is unimproved except for the residence of the testator, which is located on Louisiana avenue at a distance of 105 feet or more from Haywood road, so that the Haywood road frontage to a depth of 105 feet is vacant property; that said property is located in a business section, and is quite valuable as a business property that it would be for the best interest of the estate to sell the same and invest the proceeds, and that the prospective purchasers aforesaid have refused to accept deeds upon the ground that said property is income producing real estate and that the said Wachovia Bank & Trust Company, trustee, is not authorized and empowered under the terms of the will of Gwyn Edwards to sell income-producing real estate, but is expressly directed not to sell real estate of such description. The defendants are all the children of the testator and the plaintiff Annie May Duncan, and defendants are all of the beneficiaries under said will."

It is admitted in the pleadings:

"That said testator, at the time of his death, was the sole owner of that piece of real estate in the city of Asheville located at the corner of Haywood road and Louisiana avenue, consisting of about two acres, with a frontage on Haywood road of 227 feet and a frontage on Louisiana avenue of 388 feet; that there was prior to and at the time of the death of said testator, and there is now on said land, only the residence known as 18 Louisiana avenue and which fronts on said avenue and which was used and occupied as the home of the testator and his family, and after testator's death was the home of his widow and children until the spring of 1923; that the part of said land lying between said residence and Haywood road is vacant and unimproved and used only as a pasture in connection with said home."

On the trial, the issues submitted to the jury and their answers thereto were as follows:

"(1) Is the price for the property fronting on Haywood street described in the complaint, to wit, $400 per front foot, fair and adequate price? Answer: Yes.

"(2) Is the party making the offer able and willing to comply with his said offer and to perform the same? Answer: Yes."

There was ample evidence introduced on the hearing to warrant the answers to the above issues.

The items of the will bearing on the controversy are item 2, item 3, subsections (i) and (j), and item 4, which are as follows:

"Second. I devise and bequeath to my beloved wife, Annie May Edwards (now Duncan), the home I now occupy, known as No. 18 Louisiana avenue, corner Haywood road, consisting of about two acres, and all my household and kitchen furniture, and all personal effects in and around the home excepting moneys, bonds, notes and other securities, for her sole use and benefit for her natural life, and at her death said property is to go to my children, share and share alike, as provided for in the third item hereof. My said wife is to pay insurance, taxes, upkeep and repairs on said property out of her part of my estate and out of the moneys paid her of the net income from each child's part, as provided for in item third, subsection (c)."

"Third (i). I direct my trustee to sell and convert into cash all the real estate owned by me at my death jointly with W. E. Shuford or John Cole or any other person or persons, and invest the proceeds in good interest bearing securities, such securities as are authorized by law for guardians and trustees," etc.

"(j) As a large part of my estate now consists of income-yielding real estate, and as it is my opinion that it will increase in value from year to year, it is my wish and I hereby direct that such real estate, excepting the real estate held jointly with others mentioned in subsection (i) be not sold but be held by my trustee and turned over to my children, as, and when, herein before directed."

"Fourth. I nominate, constitute and appoint the Wachovia Bank

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