Wachovia Bank & Trust Company v. Taliaferro

Denny, J. The appellants present for our consideration and determination the following question: Did the trial court err in its findings of fact and conclusion that the trust created by the will of Frank Julius Liipfert terminated at the death of Cora Hamlen Liipfert? *127 • The paramount aim in the interpretation of a will is to ascertain if possible the intent of the testator. In our effort to ascertain the testator’s intent we must consider the instrument as a whole and give effect to such intent unless it is contrary to some rule of law or at variance with public policy. Mewborn v. Mewborn, 239 N.C. 284, 79 S.E. 2d 398; Gatling v. Gatling, 239 N.C. 215, 79 S.E. 2d 466; Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E. 2d 334; House v. House, 231 N.C. 218, 56 S.E. 2d 695; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. In our opinion, the provisions of the will of Frank Julius Liipfert make it clear that the primary objects of the testator’s bounty were his wife, Cora Hamlen Liipfert, and his children, Theo Liipfert Horton and Francis Julius Liipfert. Therefore, greater regard is to be given to the dominant purpose of the testator than to the use of any particular words. Even so, his intent is to be ascertained from the will as written. Heyer v. Bulluck, supra; Trust Co. v. Schneider, 235 N.C. 446, 70 S.E. 2d 578. Unquestionably, the reason the testator provided for the continuance ’of the trust created in Item I of his will during the life of his wife, Cora Hamlen Liipfert, and for that period after her death during which his daughter, Theo Liipfert Horton, “shall be married,” “was to make certain that the trust would not end while his daughter was married to Miles Christopher Horton, Sr. At the time of the execution of his will, his daughter’s marriage to Miles Christopher Horton, Sr. had ended in a separation, and she and her two children had been living in his home for more than ten months. Moreover, the testator doubtless knew that his daughter, under the law as it existed at that time, could not get a divorce based on separation until she and her husband had lived separate and apart for five successive years. He likewise knew that in the meantime his wife might die before his daughter could obtain a divorce from Miles Christopher Horton, Sr. Therefore, he provided that the trust should continue until £he occurrence of the latter of two events, viz., the death of his wife, and the dissolution of the marriage between his daughter and her husband, Miles Christopher Horton, Sr. It so happened that, according to the record, his daughter was granted an absolute divorce on 13 November 1928 on the ground that, without her fault, she and her husband had lived separate and apart for five successive years. At the time she obtained her divorce her father had been dead more than a year and a half and her brother, Francis Julius Liipfert, had died on the 1st day of the previous June. Therefore, when the bonds of matrimony between Theo Liipfert Horton and her husband, Miles Christopher Horton, Sr. were dissolved on 13 November 1928, there was no reason or condition set forth in the last will and testament of Frank Julius Liip-fert for a continuance of the trust, save and except that which provided *128 for its continuance during the life of the testator’s wife, Cora Hamlen Liipfert. Consequently, we concur in the ruling of the court below to the effect that the will of Frank Julius Liipfert created but one trust and that the provision in Item I of said will, to wit, “during which my daughter, Theo Liipfert Horton, shall be married,” refers to the marriage of his daughter to Miles Christopher Horton, Sr., and Theo Liipfert Horton having been divorced from Miles Christopher Horton, Sr. prior to the death of her mother, and having survived her mother, the trust terminated at the death of Cora Hamlen Liipfert on 19 August 1932. The appellants insist that the trust created under the last will and testament of Frank Julius Liipfert has not terminated and will not do so until the death of Theo Liipfert Taliaferro. We do not concur in this view. Moreover, in our opinion, the intention of the testator as expressed by the language used by him in his will, does not support the appellants’ view. “Under general rules, ordinarily, a trust for the separate use of a married woman and intended to protect the property from her husband will terminate according to the creator’s intention on a dissolution of the coverture. Thus, the trust will terminate on the death of either the husband or the wife, or on a divorce.” 89 C.J.S., Trusts, section 92, page 925. It is said in Scott on Trusts, 2nd Edition, Volume III, section 337.5, “. . . where the sole beneficiary of a trust is a married woman and the only purpose of the settlor in creating the trust was to protect her during coverture, she can compel the termination of the trust when her coverture ceases by the death of her husband or by divorce.” It is further said in 89 C.J.S., Trust, section 92, page 923: “The duration of a trust depends largely on the intention of the creator as shown by a proper construction of the trust instrument and the nature and purposes of the trust. The settlor’s intention is paramount to the wish of the beneficiary.” It is likewise said in 54 Am. Jur., Trusts, section 70, page 75, “A trust is in general limited or conditioned in duration by the terms of the trust, in which case the trust expires in accordance with the limitation or condition stated. . . . But while a trust is in general limited in duration by its terms, it continues to exist, nevertheless, at least in the sense that the trustee continues to stand in the relationship of trustee to the beneficiaries until they receive all the property and money due them by the trust.” The judgment of the court below is in all respects Affirmed.