Wachovia Bank & Trust Co. v. Holt, 215 N.C. 644 (1939)

May 24, 1939 · Supreme Court of North Carolina

215 N.C. 644

WACHOVIA BANK & TRUST COMPANY, Trustee, Under the Will of WILLIAM E. HOLT, Deceased, v. WILLIAM E. HOLT; AMANDA CALDWELL HOLT: LOIS HOLT TATE; LOUISE TATE SHELTON: THOMAS McKENDREE SHELTON; LOIS HOLT SHELTON; ALICE TATE; ETHEL HOLT VIVIAN; ROBINS C. VIVIAN; ETHEL HOLT VIVIAN, JR.; EMILY VIVIAN; CLAUDIA HOLT OATES; ANNE OATES ASHLEY; HAL H. ASHLEY; HOLT ASHLEY; JOAN ASHLEY; WILLIAM HOLT OATES; MARY ELIZABETH TUCKER OATES; MAUD HOLT MAULSBY: DAVID LEE MAULSBY; WILLIAM EDWIN HOLT MAULSBY; S. LEE MAULSBY; ALLEN PARISH MAULSBY; EMILY HOLT HUNDLEY, and JOHN MASON HUNDLEY, JR.; J. V. MOFFITT; WACHOVIA BANK & TRUST COMPANY, Trustee for CLAUDIA HOLT OATES, Under the Trust Indenture of 12 October, 1925; WACHOVIA BANK & TRUST COMPANY, Trustee for ETHEL HOLT VIVIAN, Under the Trust Indenture of 29 November, 1935; and All Unborn Persons Who May Be Interested in the Determination of This Cause.

(Filed 24 May, 1939.)

1. Wills § 33c — Under terms of this will, upon death of widow, share held in trust for her should he paid directly to testator’s children and not held in trust with ultimate disposition contingent.

The residuary clause of the will in suit provided that the remainder of testator’s estate should be equally divided between testator’s children and his widow, with further provision that, at the time for the final settlement of the estate, the widow’s share and the share of any child without any living heirs of his body should be paid to a trustee for their respective benefits and the income therefrom paid to them, with further provision that upon the birth of an heir to any such child his share should be paid directly to him, with further provision that upon the death of the widow or the death of any child without issue him surviving the share of such beneficiary should be paid to the surviving children share and share alike. At the time for final settlement of the estate two of testator’s children were without bodily heirs, and the shares of such children and the share of the widow were paid to the trustee for their respective benefits. Held: Upon the death of the widow and the termination of the trust for her benefit, the respective interests therein of the children without bodily issue should be paid directly to them and not to the trustee for their benefit, and if one of the children should die without bodily heirs him surviving the surviving child without bodily heirs would also be entitled to the payment of his interest in such deceased child’s share.

2. Wills § 31—

Where the terms of a will are plain and unambiguous, its express terms should be given effect, and there is no occasion for judicial interpretation or the presumption of an intention at variance with the language employed.

Schenck, J., took no part in the consideration or decision of this case.

Appeal by plaintiff and defendant, F. Gaither Jenkins, guardian ad litem for minors, and any and all persons who may hereafter be born, interested in the determination of this cause, from Sink, J., at February Term, 1939, of DavidsoN.

Civil action under the Uniform Declaratory Judgment Act (Public Laws 1931, ch. 102) for construction of portions of the will of William E. Holt, deceased.

Pertinent facts alleged by plaintiff, and admitted by all parties and found by the court below, are substantially these: William E. Holt, a resident of Davidson County, North Carolina, died on 26 May, 1917, leaving a last will and testament in which, after providing in item two dower for his wife in all real property of which he may die seized, and for equal division of the remainder of his real property among his children, or the heirs of the body of any child who may be dead, it is provided as follows: “Third: I give and bequeath all the remainder of my estate to my wife, Amelia L. Holt, my son, William E. Holt, and my daughters, Claudia Oates, wife of E. M. Oates, Ethel Vivian, wife of E. C. Vivian, Lois Tate, wife of R. L. Tate, Maud Maulsby, wife of D. L. Maulsby and Emily Holt, to be divided equally among them share and share alike; provided, however, that should any of my said children have no heirs of their body living at the date of the final settlement of my estate, my executors hereinafter named, shall convey such child’s or children’s share or shares to the Wachovia Bank & Trust Company of Winston Salem, N. C., such share or shares to be held in trust by the said Wachovia Bank & Trust Company for such child or children; the income derived from such share or shares so trusteed to be paid to such child or children, semiannually, upon the first days of January and July in each and every year during the life of said trusteeship, but if such child or children shall have living issue born after the creation of said trust or trusts, then the trusteeship above created shall cease and determine and the corpus of such share or shares shall vest in such said child or children absolutely, but in the case any of my said children whose share or shares may have been trusteed as above provided should die leaving no heirs of their body surviving them, then the trusteeship of each share or shares shall cease and determine, and the said Wachovia Bank & Trust Company shall divide and distribute any such share or shares equally among my said children surviving, or the heirs of the body of such of my said children that may be deceased, share and share alike, the child or children of any of my children that may be deceased representing and standing in the place of their parent or parents. Provided further, should my said wife, Amelia L. Holt, be living at the final settlement of my estate, my executors hereinafter named, shall convey her said share to the Wachovia Bank & Trust Company, of Winston Salem, N. C., said share to be held in trust for the said Amelia L. Holt during her life and the income derived from said share to be paid to her semiannually upon the first day of January and July in each and every year during the life of said trust; and upon the death of my said wife, Amelia L. Holt, the trusteeship herein created shall cease and .determine, and the aforesaid Wachovia Bank & Trust Company shall divide and distribute equally the share of my said wife among my said children, the heirs of the body of any of my said children as may be deceased shall represent and stand in the place of their parent or parents . . .”

The testator was survived by his wife and all of his children, all of whom are named in the said third item of his will.

At the date of the final settlement of the estate of the testator by his executors, neither his son, William E. Holt, nor his daughter, Emily Holt Hundley, nee Emily Holt, had any heirs of the body living, and under the provisions of the third item of the will the executors conveyed to plaintiff two shares of the estate of the testator to be held in trust and administered under the provisions in said item of the will for the benefit of said two children, both of whom are now living. No child has been born to either of them and their shares in said estate are still being held by plaintiff under said item of the will.

Amelia L. Holt, wife of testator, was living at the date of the final settlement of the testator’s estate and under the provisions of the third item of this will her share of said estate was conveyed by said executors to plaintiff and, since the receipt thereof, plaintiff has held the same in trust under tbe provisions of said item of tbe will. Amelia L. Holt died 6 September, 1938, and tbe properties in said trust are now distributable in accordance with tbe provisions of said item.

Tbe question bas arisen as to whether under a proper interpretation of tbe third item of tbe will the respective shares of William E. Holt and Emily Holt Hundley in tbe properties in tbe said trust for tbe benefit of Amelia L. Holt shall be turned over to them outright, as contended by them, or shall same be added to tbe respective trusts now held and administered for their benefit by tbe plaintiff, as contended by others of tbe defendants.

Plaintiff prays tbe court to construe tbe will, particularly tbe third item, and to determine not only tbe rights of defendants in tbe distribution of tbe properties held in trust by plaintiff under said item of tbe will for tbe benefit of Amelia L. Holt during her lifetime, but to determine in tbe event either William E. Holt and Emily Holt Hundley shall die without having bad issue, whether tbe survivor shall participate equally with tbe other children in tbe distribution of tbe share of tbe one so dying in and to the properties held in trust by the plaintiff under said item of tbe will for their benefits respectively.

In the judgment rendered below after reciting that: “It further appearing to tbe court from the evidence offered that all persons, both those in esse and those not in esse, who have, or might have, any interest or claim under or by virtue of said will have been made parties to this action; that a suitable guardian ad litem bas been appointed for all tbe minors and persons not in esse who are parties to tbe action and that all persons named in tbe complaint as defendants have been duly served with summons and copy of tbe complaint,” tbe court adjudges that: “1. In reference to the property held in trust and administered by tbe said Wachovia Bank & Trust Company as trustee under tbe provisions of Item Third of said will for tbe benefit of Amelia L. Holt during her lifetime, tbe court bolds that, since tbe death of said Amelia L. Holt, it is tbe duty of said trustee, áfter dividing tbe properties in said trust into six equal shares, to convey, transfer and deliver one of said shares each to William E. Holt and Emily Holt Hundley, respectively, absolutely free and discharged of any trust or contingency whatever, each of said shares to thereafter be tbe absolute property of tbe said William E. Holt and Emily Holt Hundley.

“2. In reference to the two shares of tbe estate of the said William E. Holt, now being held in trust for the benefit of William E. Holt and Emily Holt Hundley, by tbe said Wachovia Bank & Trust Company, trustee, under tbe provisions of Item Third of said will of William E. Holt, tbe court bolds: (a) If either tbe said William E. Holt or Emily Holt Hundley should have living issue, then tbe share now being held in trust for sucb one so baying living issue shall be conveyed, transferred and delivered to sucb one absolutely free and discharged of any trust or contingency whatsoever.

“(b) If either the said William E. Holt or Emily Holt Hundley should die without ever having had living issue, and leaving the other surviving, then such survivor, whether he or she shall ever have had living issue or not, shall equally participate with the other children, and the representatives of any deceased children, per stirpes, of William E. Holt, deceased, in the distribution of the share of the one so dying, and the interest of the said survivor of the two in the share of the trust estate held for the benefit of such decedent under the provisions of Item Third of said will shall be distributed to the survivor, absolutely free and discharged of any trust or contingency whatsoever.”

From this judgment plaintiff and only the defendant E. Gaither Jenkins, guardian ad litem of Lois Holt Shelton, Joan Ashley, Holt Ashley, S. Lee Maulsby and Allen Earish Maulsby, minors, and any and all persons who may hereafter be born, interested in the determination of this cause, appeal to the Supreme Court and assign error.

Manly, Eendren & Womble for appellants.

Robinson & J ones for appellees.

WinboeNE, J.

Did the court in the judgment below properly construe the third item of the will of William E. Holt? Apparently out of abundance of caution, plaintiff in fiduciary capacity, and the guardian ad litem representing minors and unborn persons who may become interested in the estate, present this question. We are of opinion that the judgment follows the manifest intent of the testator as clearly expressed in the words used by him. The language of the will is plain English, unequivocal, and unambiguous, and there is no occasion for judicial interpretation. Wooten v. Hobbs, 170 N. C., 211, 86 S. E., 811; Scales v. Barringer, 192 N. C., 94, 133 S. E., 410; Williams v. Best, 195 N. C., 324, 142 S. E., 2; Bell v. Gillam, 200 N. C., 411, 157 S. E., 60.

Appellants contend that the will shows an intention of William E. Holt to keep his estate in his own blood stream. As was stated by Adams, J., in Power Co. v. Haywood, 186 N. C., 313, 119 S. E., 500, in speaking to a similar factual situation, “We are not permitted to substitute a presumed intention which is at variance with the obvious meaning of the language employed.”

Affirmed.

ScheNCK, J., took no part in the consideration or decision of this case.