Waddell v. United Cigar Stores of America

• Decision Date: 04 April 1928
• Docket Number: 565.
• Parties: WADDELL v. UNITED CIGAR STORES OF AMERICA.
• Court: North Carolina Supreme Court

142 S.E. 585

195 N.C. 434

WADDELL v. UNITED CIGAR STORES OF AMERICA.

No. 565.

Supreme Court of North Carolina

April 4, 1928

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

Controversy without action between Duncan Cameron Waddell, Jr., trustee under the will of Leila Johnston Waddell, deceased, and the United Cigar Stores of America. Judgment for plaintiff trustee, and defendant appeals. Affirmed.

Superior court could make any order deemed beneficial respecting lease of trust property beyond trust period, if all interests were represented.

Judgment sustaining lease of trust property beyond trust period will not be disturbed, in absence of provision interfering with title, interest, or income of contingent remaindermen not in being.

Leila Johnston Waddell died December 1, 1924, leaving a last will and testament which was duly admitted to probate in Buncombe county. She appointed her husband, Duncan Cameron Waddell her sole executor and trustee, and gave him full power and authority to perform all duties devolving upon him, and provided that if he should not qualify or if he should die before the administration of her estate is completed, the Wachovia Bank & Trust Company should become her executor and trustee with the same powers that were conferred upon her husband. The three items following are material to the controversy:

"Item 5. I give and bequeath to Gabrielle De Rossett Waddell, of Wilmington, North Carolina, an annuity of $1000, for and during her natural life, and I direct my executor and trustee to pay semiannually to said Gabrielle De Rossett Waddell said amount from the income derived from the Paragon Building, located at the corner of Patton Avenue and Haywood Street, in the city of Asheville, North Carolina, hereinafter particularly referred to, so long as she may live, and I do hereby make said annuity a first charge on the income derived from said property.

Item 6. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate, to my husband, Duncan Cameron Waddell in fee, except that certain property in the city of Asheville, at the corner of Patton Avenue and Haywood Street, known as the Paragon Building, and specifically mentioned hereinafter in my said will, and I devise and bequeath said Paragon Building property to said Duncan Cameron Waddell, in trust, to handle, manage, control and improve in such way as to him may seem desirable, and to collect all income therefrom and out of said income he shall pay to Gabrielle De Rossett Waddell the annuity herein given in Item V hereof, and all the income derived from said property, not required to pay said annuity, shall be and become the personal property of the said Duncan Cameron Waddell.

Item 7. After the death of my husband, Duncan Cameron Waddell, I devise and bequeath said Paragon Building property aforesaid, situate at the corner of Patton Avenue and Haywood Street, in the City of Asheville, to the Wachovia Bank & Trust Company, of Winston-Salem, North Carolina, in trust, to be by it held, managed and controlled for the joint interest and benefit of Robert Bruce Johnston and William Johnston, sons of William Johnston of Asheville, North Carolina, subject, however, to the annuity charge mentioned in Item V for the benefit of Gabrielle De Rossett Waddell. I direct said trustee, after the payment of said annuity, to pay the net income derived from said property, equally and semiannually, to the guardian or guardians of the said Robert Bruce Johnston and William Johnston until they become of age, and thereafter pay it to them semiannually, share and share alike, for and during their natural lives. In the event of the death of one of them before the other, then said net income shall be paid to the survivor, at the times heretofore directed, unless the one dying shall leave children surviving him, in which event his part of said net income shall be paid, as heretofore directed, to the guardian of his child or children, share and share alike, until he, she or they, shall reach the age of 21 years, and then to him, her or them during the existence of the trust herein created. Said trust shall terminate upon the death of both said Robert Bruce Johnston and William Johnston, and then said trustee shall turn over and deliver to the child or children of each of them surviving, per stirpes, if there be any, or the children of the survivor, if there be any, said property, and make and execute any and all necessary instruments or writings required to invest him, her or them with full and complete title to said property. If, however, said Robert Bruce Johnston and William Johnston shall die leaving no child or children surviving, said trustee, aforesaid, shall turn over and deliver and make and execute all instruments or writings required to invest the Diocese of Western North Carolina of the Protestant Episcopal Church of the United States of America, with complete title to said property."

The parties hereto entered into an agreement, the form of which is satisfactory to them, by which the plaintiff is to lease the Paragon building to the defendant for a term of 30 years from January 1, 1928, at an agreed rental price; and for the purpose of obtaining legal authority to execute the lease the plaintiff prosecuted a civil action in the superior court of Buncombe county entitled "Duncan Cameron Waddell, Trustee, v. Wachovia Bank & Trust Company et al.," the judgment roll of which is made a part of the record. The defendants in that action were the Wachovia Bank & Trust Company, the Diocese of Western North Carolina of the Episcopal Church of the United States of America, Robert Bruce Johnston, and William Johnston, their guardian, Sarah W. Johnston, "and all persons not in esse." The present defendant was not a party. In that case the plaintiff's allegations were admitted by all the defendants, and Judge Schenck upon facts found and set out in the judgment adjudged that the plaintiff has power and authority to execute the lease; but when it was executed and tendered the defendant refused to accept it for the alleged reason that the superior court did not have any jurisdiction, either statutory or inherent, of the subject-matter thereof, or of the parties and purported parties thereto, including the remaindermen not yet in esse, and that the said decree is not valid and binding upon all of the parties, purported parties, and the remaindermen not yet in esse.

Judge Moore adjudged that the lease was valid and that the plaintiff is entitled to the rental price of the property accruing since January 1, 1928. The defendant excepted and appealed.

Geo. H. Wright, of Asheville, for appellant.

Merrimon, Adams & Adams, of Asheville, for appellee.

ADAMS J.

This is a controversy without action submitted under article 25 of chapter 12 of the Consolidated Statutes to test the validity of a written instrument executed by the plaintiff and tendered to the defendant for the lease of a building situated at the corner of Patton avenue and Haywood street in the city of Asheville, known as the Paragon building. The house is a three-story brick structure, which was erected 25 or 30 years ago-a barber shop in the basement; a bank and stores on the ground floor; on the second floor...