White v. WACHOVIA BANK AND TRUST COMPANY

• Decision Date: 04 March 1966
• Docket Number: No. C-52-WS-65.,C-52-WS-65.
• Citation: 251 F. Supp. 155
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Robert Norfleet WHITE, Marshall Gill White, Jr., Lucy S. White Cook, Mary Norfleet White Cook, Mary Norfleet Cook, Lucius Pinckney Cook, III, a Minor, Lucy Shepherd Cook, a Minor, and Ellen Shepherd Kimbrough, a Minor, by their Next Friend, Lucius Pinckney Cook, Jr., and Board of World Missions of the Presbyterian Church in the United States, Plaintiffs, v. WACHOVIA BANK AND TRUST COMPANY, Trustee under the Will of Robert C. Norfleet, Ellen Shepherd Potter, Robert Edward Potter, Mary Shepherd Smoot, James R. Shepherd, Mary S. Dempsey, Robert V. Brawley, Guardian ad litem for James Edward Shepherd Dempsey, a Minor, Barium Springs Home for Children, Ralph E. Goodale, Guardian ad litem for the Unborn Issue of Mary Norfleet Shepherd (Deceased) other than the Unborn Issue of Lucy Shepherd White, and J. Clifton Harper, Guardian ad litem for the Unborn Issue of Lucy Shepherd White (Deceased), Defendants.

251 F. Supp. 155

Robert Norfleet WHITE, Marshall Gill White, Jr., Lucy S. White Cook, Mary Norfleet White Cook, Mary Norfleet Cook, Lucius Pinckney Cook, III, a Minor, Lucy Shepherd Cook, a Minor, and Ellen Shepherd Kimbrough, a Minor, by their Next Friend, Lucius Pinckney Cook, Jr., and Board of World Missions of the Presbyterian Church in the United States, Plaintiffs, v. WACHOVIA BANK AND TRUST COMPANY, Trustee under the Will of Robert C. Norfleet, Ellen Shepherd Potter, Robert Edward Potter, Mary Shepherd Smoot, James R. Shepherd, Mary S. Dempsey, Robert V. Brawley, Guardian ad litem for James Edward Shepherd Dempsey, a Minor, Barium Springs Home for Children, Ralph E. Goodale, Guardian ad litem for the Unborn Issue of Mary Norfleet Shepherd (Deceased) other than the Unborn Issue of Lucy Shepherd White, and J. Clifton Harper, Guardian ad litem for the Unborn Issue of Lucy Shepherd White (Deceased), Defendants.

No. C-52-WS-65.

United States District Court M. D. North Carolina, Winston-Salem Division.

March 4, 1966.

Walter R. Jones, Jr., of Blackwell, Blackwell, Canady, Eller & Jones, Winston-Salem, N. C., for plaintiffs.

Weston P. Hatfield and C. Edwin Allman, Jr., of Hatfield & Allman, Calder W. Womble, of Womble, Carlyle, Sandridge & Rice, Robert V. Brawley, of Craige, Brawley, Lucas & Horton, Ralph E. Goodale and J. Clifton Harper, Winston-Salem, N. C., for defendants.

EUGENE A. GORDON, District Judge.

This action was brought by the plaintiffs to have the Court construe certain provisions of the will of Robert C. Norfleet, in particular, the manner of distribution of the share of income of Edward M. Shepherd, a beneficiary of the testamentary trust established by the will, among his surviving brother and sisters or their legal representatives.

A jury trial was waived, and the matter was heard by the Court sitting without a jury.

Having now carefully considered all of counsels' proposals, arguments and contentions, as well as the testimony, pleadings, stipulations, briefs and exhibits submitted, and the reasonable inferences to be drawn therefrom, the Court pursuant to Rule 52 of the Federal Rules of Civil Procedure makes its Findings of Fact and Conclusions of Law.

Discussion

Robert C. Norfleet, hereinafter referred to as testator, died testate on July 3, 1941, leaving a will under which a testamentary trust was established. The will provides that the net income from the trust was to be paid to the wife of the testator, Sophie Brown Norfleet, for life. She died on July 2, 1951. After her death, the will directs that the net income be distributed as follows:

A. 9/64 to testator's sister, Ellen Norfleet Moore, and upon her death to her three children, the issue or lineal descendants of a deceased child representing its parents during their lives according to the following fractions: 4/18 to a son, Baxter S. Moore, and 7/18 to each of two daughters, Ellen Moore Kimbrough, and Johnsie Moore Heyward.

B. 13/64 to testator's niece, Lucy Shepherd White, and upon her death to her four children, the issue or lineal descendants of a deceased child representing its parents, during their lives according to the following fractions: 3/13 to each of two daughters and one son, Mary Norfleet White Cook, Lucy S. White Kimbrough and Marshall Gill White, Jr.; and 4/13 to a son, Robert Norfleet White.

C. 7/64 to testator's niece, Ellen Shepherd Potter, and upon her death to her issue or lineal descendants surviving her, if any, or if none, "to her surviving brothers and sisters or their legal representatives."

D. 7/64 to testator's niece. Mary Shepherd Smoot, and upon her death to her issue or lineal descendants surviving her, if any, or if none, "to her surviving brothers and sisters or their legal representatives."

E. 6/64 to testator's nephew, James R. Shepherd, and upon his death, to his surviving issue or lineal descendants, if any, or if none, "to his surviving brother and sisters or their legal representatives."

F. 6/64 to testator's nephew, Edward M. Shepherd, and upon his death, to his surviving issue or lineal descendants, if any, or if none, "to his surviving brother and sisters or their legal representatives."

G. 9/64 to testator's brother, M. W. Norfleet, and upon his death to his three children and their respective issue according to the following fractions: 1/3 to each of two sons and a daughter, Leon Norfleet, M. W. Norfleet, Jr. and Lila Ross Norfleet Davis.

H. The remaining 7/64, unless disposed of by codicil, is to increase "pro rata the income distributable to my beneficiaries under the provisions set forth and contained in the foregoing sections and subsections and subdivisions * * *."

As to termination of the testamentary trust and restrictions placed on the distribution of the income and principal, the will provides as follows:

ITEM III, 5, provides that the trust is to terminate twenty years and eleven months after the death of the last survivor of the named beneficiaries living at the death of the testator, and upon termination of the trust, the principal is to be divided "among the persons, who, at the time of such termination, shall be entitled to receive the net income in the same proportions as the net income shall be at that time distributable."

ITEM III, 6 provides that other than the testator's wife, Sophie Brown Norfleet, his sister, Ellen Norfleet Moore, his brother, M. W. Norfleet, and his nieces, Lucy Shepherd White, Ellen K. Shepherd (now Ellen K. Shepherd Potter) and Mary Shepherd Smoot, no one can receive more than 10/64 of the income. The amount in excess of 10/64 "shall be pro tanto distributed ratably to such of the other natural persons entitled to take hereinunder as shall be receiving less than 10/64 of the total net income." In the event that every beneficiary's share is brought up to 10/64, the excess income is to be distributed equally to the Board of World Missions of the Presbyterian Church in the United States and Barium Springs Home for Children. A limit of 10/64 is similarly placed on each beneficiary's distributive share of the principal, and no exceptions to this limit are made.

An action to construe various portions of the will was instituted by the Trustee in the Superior Court of Forsyth County, North Carolina. All of the parties to this proceeding, as well as other parties, were before the Court in such action. After a full hearing during the April 6, 1964, term of said court, a judgment was entered with respect to certain provisions of the will of the testator. The judgment ordered, in part, the following:¹

"That the Trustee construe the words `their legal representatives' as such words appear in sub-paragraphs (C), (D), (E) (F), (G) (1) and (G) (2) of paragraph 4 of ITEM III of the will of Robert C. Norfleet to mean:

(4) In sub-paragraph (F), `the surviving issue per stirpes of any deceased brother and sisters.'"

No appeal was taken from the judgment.

This action was brought to construe certain provisions of the will of the testator, and more particularly, ITEM III, 4(F), which reads as follows:

"Six sixty-fourths (6/64) of the net income derived from my trust estate shall be paid monthly or quarterly to my nephew, Edward M. Shepherd, during his lifetime. After the death of my said nephew, the six sixty-fourths (6/64) of the income which he, if living, would be entitled to receive, shall thenceforth be distributed to his surviving issue or lineal descendants, if any, or if he shall leave no issue or lineal descendants surviving him, to his surviving brother and sisters or their legal representatives."²

Edward M. Shepherd died on September 20, 1963, without issue or lineal descendants. A determination is now requested by the parties as to the distribution of the 6/64 interest originally given to Edward M. Shepherd in ITEM III, 4(F). He was survived by a brother, James R. Shepherd; two sisters, Ellen Shepherd Potter and Mary Shepherd Smoot, and four children of a deceased sister, Lucy Shepherd White, to wit: Mary Norfleet White Cook, Marshall Gill White, Jr., Lucy S. White Kimbrough, and Robert Norfleet White. Since the death of Edward M. Shepherd, the Trustee has divided the income distributable under ITEM III, 4(F), into four equal shares with one equal share being distributed to each of the two sisters and brother surviving the deceased beneficiary and with one equal share being apportioned in equal shares among the four children of Lucy Shepherd White.

The plaintiffs who are the children and grandchildren of Lucy Shepherd White contend that the income distributable under ITEM III, 4(F), should be distributed pro rata to the surviving brother and sisters of Edward M. Shepherd, with the four children of Lucy Shepherd White representing their parent, in proportion to the respective fractional shares of the net income payable to them out of the testamentary trust provided for in other sections of the will.³ The defendants who are the Trustee, the living children of Mary Norfleet Shepherd and their lineal descendants (other than the children and lineal descendants of Lucy Shepherd White) contend that the income payable to Edward M. Shepherd should be distributed equally among his surviving brother and sisters with one equal share distributed to the children of the deceased sister, Lucy Shepherd White. The Court is in agreement with the latter contention for reasons hereinafter stated.

In determination of the questions presented herein by the parties, the law of North Carolina is controlling. Cabarrus Bank and Trust Company v. Finlayson, 4 Cir., 286 F.2d 251 (1961). The principal and controlling guide for the Court in the interpretation of any will is the intention of the testator. As stated by the court in Carroll v. Herring, 180 N.C. 369, 104 S.E. 892, 894 (1920):

"The primary object, in interpreting all wills, is to ascertain what testator desired to be done with his estate, and if it can be found in the language of the document, his intention

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