Commerce Union Trust Co. v. Thorner

CoNNok, J. We do not concur in the opinion of the Superior Court in accordance with which its judgment was rendered, to wit: “That by the terms of the last will and testament of Solomon Lipinsky, deceased, the trust created by Item YI of said will terminated upon the death of Eva Lipinsky, wife of the said Solomon Lipinsky, and that by the terms of said item, the principal or corpus of the residuary estate of the said testator should have been divided at that time, or as soon thereafter as practicable.” It is clear, we think, that it was the intent of the testator, expressed in language which is free from ambiguity, and which therefore does not call for construction (Wooten v. Hobbs, 170 N. C., 211, 86 S. E., 811), that the trust created by him in Item YI of his last will and testament, should continue for ten years from the date of his death, at least, and that if his wife survived the expiration of said ten years, that the trust should continue so long as she should live, and in that event should terminate at her death. As she died before the expiration of said period of ten years, the trust continues and does not terminate until the expiration of ten years from the date of the death of the testator. The parties to this controversy without action do not seem to have had any difference of opinion as to when the trust terminates, under the provisions of Item YI. It seems to be conceded by them that the trust did not terminate at the death of Mrs. Eva Lipinsky, but that it continues until the expiration of ten years from the date of the death of the testator. Whether or not it was error for the court to determine a question not expressly submitted by the parties to the controversy, upon the facts agreed, as contended by the Commerce Union Trust Company of Asheville, we do not now decide or consider. We are of opinion and so hold that there is error in the judgment for that it was rendered in accordance with an erroneous opinion of the court upon the question as to when the trust terminated. For this error, the judgment must be reversed. *246 "We are further of the opinion that in the absence of a direction by the testator as to the distribution of the three-fourths of the net income from the trust fund collected after the death of Mrs. Eva Lipinsky, and before the expiration of the trust, the trustees must hold said three-fourths of said income until the termination of the trust, that is, until the expiration of ten years from the date of the death of the testator. At the termination of the trust, the sum then in the hands of the trustees, representing accumulated income from the trust fund, should be paid by the trustees to the persons who, under the provisions of Item VI, are entitled to share in the principal or corpus of the trust fund. If the three sons and the daughter of the testator shall be living at the termination of the trust, each will be entitled to an equal share of the fund, including accumulated income. Item VI, however, contains the following provision: “Provided, however, if any one or more of my said children shall have died leaving lawful issue, or legally adopted child, then the share of such child of mine so dying shall be paid over and delivered to the said Commerce Union Trust Company of Asheville, as trustee, etc.” The ultimate beneficiaries of the trust created by Item VI of the last will and testament of Solomon Lipinsky cannot be determined until the termination of the trust. The suggestion of the learned counsel for the appellant, Mrs. Clara Lipinsky Thorner, both in his brief and in his argument in this Court, that the income from the trust fund, after the death of Mrs. Eva Lipinsky, should be paid by the trustees to the children of Solomon Lipinsky, as his distributees, and heirs at law, for the reason that said income is in the nature of undevised property, cannot, we think, be sustained. If the income from the trust fund collected by the trustees after the death of the testator, can be held to be the property of the testator, then the language of Item VI, is broad and comprehensive enough to include such income, and vest it in the trustees, as a part of the residuum of the estate, and therefore as part of the corpus of the trust fund. In any event, we are of the opinion that the income from the trust fund, collected by the trustees, and retained by them, because the testator has not authorized them to pay it out, until the expiration of the trust, must be held by the trustees and paid by them, at the termination of the trust, to the persons who shall then, under the provisions of Item VI, be entitled to the fund in their hands. To the end that judgment may be entered in the Superior Court of Buncombe County in accordance with this opinion, the judgment rendered must be Reversed.