Wilmington Savings & Trust Co. v. Cowan, 208 N.C. 236 (1935)

May 22, 1935 · Supreme Court of North Carolina

208 N.C. 236

THE WILMINGTON SAVINGS AND TRUST COMPANY, Executor and Trustee Under the Last Will and Testament of HANNAH P. BOLLES, Deceased, v. MRS. BLANCHE COWAN, SARAH STONE COWAN, MARY GILES COWAN KING, and Others, Devisees, Legatees, and Beneficiaries Named in the Last Will and Testament of HANNAH P. BOLLES, Deceased.

(Filed 22 May, 1935.)

1. Wills E f — Subject matter of void legacy held not to become part of corpus of estate but fell within the residuary clause of the will.

Testatrix directed that all of her real property and all of her personal property, with the exception of her personal effects, furniture, and furnishings, should be sold and divided equally between named beneficiaries, and stipulated that she wished her personal effects to be disposed of by delivering them to persons whose names would appear on a memorandum which she intended filing with the will. The will contained a residuary clause.' Testatrix failed to prepare and file the memorandum with the will. Held: The personal effects of testatrix did not become a part of the corpus of the estate, it being the intent of the testatrix as gathered from the whole instrument that such personal effects should not be sold by the executor or included in the provisions for equal division of the corpus of the estate to the named beneficiaries.

2. Wills P h — Legacy held void because impossible of execution, and the subject matter of the legacy fell within residuary clause.

Testatrix provided that her personal effects should be delivered to persons whose names would appear on a memorandum which she intended to file with the will. Testatrix failed to prepare and file the memorandum with the will. Held: The legacy was void because impossible of taking effect, and by operation of O. S., 4166, the subject matter of the void legacy is included in the residuary clause and should be delivered to the beneficiaries named therein.

Appeal by defendants Sarab Stone Cowan and Mary Giles Cowan King, residuary legatees, from Frizzelle, J., at March Term, 1935, of the Superior Court of New HaNOVeR.

Reversed.

This is an action for tbe construction by tbe court of certain provisions of tbe last will and testament of Miss Hannab P. Bolles, wbo died in tbe city of Wilmington, N. C., on 13 February, 1933, having first made and published her last will and testament, which has been duly probated and recorded in tbe office of tbe clerk of tbe Superior Court of New Hanover County.

Tbe plaintiff is tbe duly qualified executor of tbe said last will and testament, and is named therein as trustee for certain of tbe defendants.

Tbe defendants are tbe devisees, legatees, and beneficiaries named in said last will and testament, and have been duly made parties to this action.

By Item III of her said last will and testament, tbe testatrix directed her executor to sell and dispose of all her real estate, wherever situate, within twelve months from tbe date of tbe probate of said last will and testament, and to that end she authorized and empowered her said executor to sell and convey tbe said real estate to tbe purchaser or purchasers by good and sufficient deed or deeds; she further directed and empowered her said executor to sell, at either public or private sale, all her personal property, “except my personal effects, furniture, and furnishings which are listed and are to be disposed of in accord with a memorandum to be deposited with this will as provided in Item IY hereof.” She further directed her said executor, after tbe payment of her debts and taxes, and after tbe payment of all costs and expenses of tbe administration of her estate, including commissions, to divide “all tbe rest and residue of my estate” into thirty shares of equal value, and to deliver to the persons named in said Item III the shares of her estate as therein directed.

Items IY and Y of said last will and testament are as follows:

“Item IY. I request and direct my executor to dispose of my personal belongings, my furniture and other personal effects in tbe manner and to the persons whose names will appear upon a memorandum which I will prepare and file with a copy of this will which I propose to place in my safe deposit box at tbe Wilmington Savings and Trust Company.

“Item Y. All tbe rest, residue, and remainder of my said estate of whatever character and kind and wherever situate, I give, devise, and bequeath unto Sarah Stone Cowan and Mary Giles Cowan King, daughters of tbe late Robert H. Cowan.”

No memorandum showing tbe names of the persons to whom the testatrix requested and directed her executor to deliver her personal belongings, her furniture, and her personal effects in accordance with the provisions of Item IY of her will, was found after her death in her safety deposit box at the Wilmington Savings and Trust Company. Tbe testatrix bad failed to prepare and file such memorandum with the copy of her last will and testament.

On tbe foregoing facts tbe plaintiff contended tbat tbe personal belongings, furniture, and personal effects of tbe testatrix constituted a part of tbe corpus of ber estate, and should be included in tbe division of ber property under tbe provisions of Item, III of ber will; tbe defendants Sarab Stone Cowan and Mary Giles Cowan King contended tbat said personal belongings, furniture, and personal effects should be delivered to them as residuary legatees under tbe provisions of Item Y of tbe said will.

Tbe court was of opinion tbat said personal belongings, furniture, and personal effects constitute a part of tbe corpus of tbe estate of tbe testatrix, and should be included in tbe division of ber property, real and personal, and so adjudged.

Tbe defendants Sarab Stone Cowan and Mary Giles Cowan King appealed to tbe Supreme Court.

Bellamy & Bellamy for plaintiff.

Herbert McClammy for defendants.

CoNNOR, J.

It was manifestly tbe intention of tbe testatrix at tbe time she executed ber last will and testament tbat ber “personal belongings, furniture, and personal effects” should not be sold by ber executor, or included in tbe division of ber estate, which she directed ber executor to make for purposes of distribution. This intention appears from tbe “four corners” of tbe will, and is tbe pole star by which tbe Court must be guided in construing tbe provisions of tbe will. Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417.

In Item III of ber will tbe testatrix directed and empowered ber executor to sell all ber personal property “except ber personal effects, furniture, and furnishings.” In Item IY she requested ber executor to dispose of ber personal belongings, ber furniture, and other personal effects by delivering them to tbe persons whose names would appear on a memorandum which she intended to prepare and file with ber will. She failed to prepare and file tbe memorandum. For this reason, tbe provisions of Item IY of ber will are incapable of taking effect, and tbe legacy is void. Faison v. Middleton, 171 N. C., 170, 88 S. E., 141.

Under tbe provisions of O. S., 4166, tbe property which is tbe subject matter of tbe void legacy, is included within tbe residuary legacy provided by Item Y of tbe will, and should be delivered by tbe executor to tbe defendants Sarab Stone Cowan and Mary Giles Cowan King.

There is error in tbe judgment, which must, for tbat reason, be

Reversed.