Weaver v. Kirby

• Decision Date: 07 November 1923
• Docket Number: 360.
• Citation: Weaver v. Kirby, 186 N.C. 387, 119 S.E. 564 (N.C. 1923)
• Parties: WEAVER ET AL. v. KIRBY ET AL.
• Court: North Carolina Supreme Court

119 S.E. 564

186 N.C. 387

WEAVER ET AL. v. KIRBY ET AL.

No. 360.

Supreme Court of North Carolina

November 7, 1923

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

Action by Walter M. Weaver and another against M. F. Kirby administrator of Nannie E. Kirby and B. G. Faw, administrator with will annexed of W. H. Perkins. From a judgment sustaining a demurrer, plaintiffs appeal. Demurrer sustained and action dismissed.

A testamentary provision that it was testator's will and desire that devisee should devise the property left to her or the proceeds thereof to those who had been the kindest in aiding and comforting testator and devisee in their old age held too uncertain as to the beneficiary to create a trust.

The action is to assert the right and claim of plaintiffs to the property of W. H. Perkins, deceased, under and by virtue of his last will and testament, and as the persons who had been "kindest to said devisor and his wife, Nannie E Perkins, in their old age," etc., and, in setting forth their cause of action, the complaint alleged among other things the following:

That said W. H. Perkins died in July, 1916, leaving a large estate and making disposition thereof in his last will and testament as follows:

"In the name of God amen: I, W. H. Perkins, of the county of Ashe and state of North Carolina, being of sound mind and memory, but considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament.

First: My executor, hereinafter named, shall give my body a decent burial, suitable to the wishes of my friends and relatives, and erect a suitable monument to mark my resting place, and pay all funeral expenses, together with all my just debts which may come into his hands out of my estate.

Second: I give and devise to my beloved wife, Nanie E. Perkins, all my property, real, personal and mixed.

Third: It is my will and desire that my beloved wife, Nanie E. Perkins, shall have the full management and control of said property her natural life, and that she shall enjoy the benefits of the same, and shall have full power to sell and dispose of the same at her discretion.

Fourth: It is my will and desire that in the event of my beloved wife, Nanie E. Perkins does not dispose of said property during her natural life, or in the event she does dispose of it, that at her death she shall devise said property, or proceeds thereof to the person or persons who have been the kindest to us in aiding and comforting us in our old age, whether such person or persons be kinsmen or stranger.

Fifth: I hereby constitute and appoint my beloved wife, Nanie E. Perkins my lawful executor to all intents and purposes to execute this my last will and testament, according to the true intent and meaning of the same and every part and clause thereof, hereby revoking and declaring utterly void all other wills and testaments by me heretofore made.

In witness whereof, I, the said W. H. Perkins, do hereby set my hand and seal, this the 21st day of September, 1904.

W. H. Perkins [Seal.]"

That his wife, Nannie E. Perkins, duly qualified as executrix of his will, and, having afterwards intermarried with defendant, M. F. Kirby, died on December 24, 1922, without having fully administered on said estate and without making disposition of her own property subsequent to her second marriage. That defendant, B. G. Faw has duly qualified as administrator with the will annexed of said W. H. Perkins, and M. F. Kirby has duly qualified as administrator of Nannie E. Kirby (formerly Mrs. Nannie E. Perkins). That said Nannie E. Perkins executed a will of her estate in favor of W. H. Perkins at same time and in terms substantially similar to his will in her favor, but, same having been revoked by her subsequent marriage (C. S. sec. 4134), same is not set out or further referred to. That a large sum of the estate of W. H. Perkins is now on hand and unadministered, and with no creditors having any claims thereon, and that under the fourth item of said will plaintiffs are entitled to said estate as the persons "who have been kindest to W. H. Perkins and wife in their old age," etc.

The claims of the respective parties under this position being more particularly stated in the complaint as follows:

"That for several years prior to the death of the said W. H. Perkins he became of feeble health, and at the time of his death was of about the age of 75 years, and had retired from the active management of his said business and had retained the plaintiff Walter M. Weaver, and intrusted the management of his business to the said Walter M. Weaver, who, for more than two years prior to the death of the said W. H. Perkins, had devoted a large portion of his time in the management of the business, aiding and comforting the said W. H. Perkins, and his said wife, Nannie E. Perkins, and they relied upon him, and no one else, in the management thereof; and at the time of his death, in his last sickness requested the said Nannie E. Perkins to retain the said Walter M. Weaver in the management and control of all of her business, and the business of his estate, in the conduct and management thereof; and that after the death of the said W. H. Perkins, the said Nannie E. Perkins made repeated request of the said Walter M. Weaver to remain in control and management of her business, and in compliance with the request of the said W. H. Perkins, and of her own desire, the said Nannie E. Perkins retained and kept in control the said Walter M. Weaver in the management of the business, and in aiding and comforting her in her old age, who at the time of her death was of the age of about 75 years, and had been in feeble health for some time, unable to attend to business ever since the death of the said W. H. Perkins; and the said Walter M. Weaver devoted his time and attention for a number of years in aiding and comforting the said W. H. Perkins and his said wife, Nannie E. Perkins, with the assurance on the part of both of them that he would be well provided for under their last will and testament.

That the plaintiff Martha Sexton now of about the age of 40 years has lived with the said W. H. Perkins and wife, Nannie E. Perkins, and constantly attended and aided and comforted the said W. H. Perkins and his said wife, Nannie E. Perkins, for 16 years prior to the death of the said Nannie E. Perkins, having entire control and management of their household affairs, attending them in their feeble condition, and comforting and aiding them in their old age, and last sickness,...