Haywood v. Wachovia Loan & Trust Co.

Co'NNOR, J., after stating the case: The jurisdiction of the Superior Court to entertain and decide this action is derived from the jurisdiction vested in the Court of Equity, as it was constituted in this State, prior to the Constitution of 1868, by which the Court of Equity, as distinct branches of our judicial system, was abolished, and the jurisdiction vested in them conferred upon the Superior Court. The jurisdiction of the Court of Equity grew out of its general control over trusts and trustees. In Tayloe v. Bond, 45 N. C., 5, Pearson, J., says: “The jurisdiction, in matters of construction (of wills) is limited to such as are necessary for the present action of the Court, and upon which it may enter a decree, or direction in the nature of a decree .... A Court of Equity can only take jurisdiction when trusts are involved, or when devises and legacies are so blended and dependent on each other as to make it necessary to continue the whole, in order to ascertain the legacies; in which case the Court having a jurisdiction, in regard to the legacies, takes jurisdiction over all matters necessary for its exercise.’' We do not entertain any doubt, nor is it denied, that the estate given by the testator to his infant -daughter, Louise M. Holt, is subject to the limitations imposed upon it; that she takes the property in foe, if that term may be used as descriptive of an estate or interest in personalty, subject to the “limitation and condition that she shall have and leave alive at the time of her death, a child or children, or the issue of such.” Upon failure of such child or children or the issue of a child or children living at her death, the property is given to the defendants, who are the sisters of the testator, absolutely, etc. It is not necessary, to enable the executors to discharge the trust reposed in them, for us to decide whether, by implication, the property is limited to such child or children or the issue thereof, who may be living at the death of Louise M. Holt, or whether she takes the absolute interest, subject to be divested by her death without a child — 217 — or children, or the issue of such, living at her death. This question may never arise and, if it does, it is by no means certain that the present defendants will be interested in its settlement. That the limitation is valid and that the sisters of Ohas. T. Holt are interested in the preservation of the corpus of the property, to meet the contingency of Louise M. Holt dying without issue or the issue of such living at her death, is clear; that the testator recognized and provided for this contingency by the appointment of trustees to hold the corpus of the property, is manifest from the language of the will. It is, of coiirse, of vital interest to the trustees and the Wachovia Loan and Trust Company to know what duties are imposed upon them and what rights are vested in them in respect to the control of the property. Whether, in view of the size of the estate, the age of the child and the probable income expected from the property, the case falls within that class of cases decided by this Court, wherein the executors are required to hold the property and pay over the income to the first beneficiary, is doubtful. The property is given as the residue of the estate, after payment of debts. Smith v. Barham, 17 N. C., 420; Ritch v. Morris, 78 N. C., 377, represent one class, while Tayloe v. Bond, supra; Britt v. Smith, 86 N. C., 305, fall in the other class wherein it is held that the first taker is entitled to the possession of the property. While the Courts endeavor to follow the general rule announced in these cases, in construing wills, yet, as said by Ruffin, J., in Britt v. Smith, supra: “At most, the rule Í3 one of construction, designed to give effect to the intention of the testator, and will yield whenever he manifests a different one or when it cannot be applied without defeating what seems to be his purpose; and it is therefore the duty of the Court, in every such case, to look at the whole will to ascertain, if possible, the intention there disclosed.” We had occasion to examine the question and review the decided cases — 218 — at this term. Knowles Estate, 148 N. C., . It is an. elementary and universal principle that, in the construction of. a will, the Courts will, if possible, effectuate every provision contained in it and not nullify any provision unless manifestly repugnant to some other one, in which event they will give effect to the last provision. With this principle as our guide, we seek to ascertain the intention of the testator with regard to the persons who should control the property given to his infant child, to meet the contingencies created by him. He was a man of intelligence, evidently well advised as to the condition of his estate and of his family. His will was evidently made in view of the probability that he would not long survive its execution. He knew that the income from his estate would exceed the amount necessary for the support and education of his child; He had made ample provision for his wife. He must have known that, pursuant to the limitations placed upon the estate given his daughter, it would be necessary to provide some means for giving effect to them by retaining, in the hands of some one, the corpus of the estate; that when she arrived at twenty-one years of age the guardianship of her person and her estate would cease, and that the guardian “would have no power to retain the property. In view of-these conditions he provided, in effect, that, after the settlement of his estate, payment of his debts, etc., A. W. Haywood and B. S. Robertson should be “trustees to carry out and perform the trusts therein declared.” lie appoints them “executors and trustees.” To give both terms effect, we must find an intention on his part to provide for the settlement of his estate in the usual way by his executors, and the preservation of the property to meet the “limitations and eondh tions” by placing it in the hands of trustees. In the codicil he expresses a desire that the Wachovia Toan and Trust Company be appointed guardian. This is not inconsistent with the appointment of trustees to hold and — 219 — control the property. Tlie office and duty of the guardian is distinct from that of a trustee. The guardian receives the income, disburses it for the support and education of the infant until she attains full age, when his office and duty comes to an end, the trustee thereafter paying the income directly to Louise M. ITolt. Thus construed, every provision and clause of the will is effectuated. This intention we gather from the entire will and codicil. The latter is not repugnant to the former. On the contrary, the testator, after disposing of the legacy given his mother, who had died since the execution of the will, and.making some other provisions, expressly “ratifies and confirms” the will. The fact that the estate is not given to the trustees, and the “limitations and conditions” imposed, declared in the form of specific trusts, does not affect -the question. “When it is essential to the carrying into effect the provisions of a will, a trust, by implication of law, will be decreed. Though no trust is created by the will, the Court will have regard to the intention as gathered from the entire document.” Beach on Trusts, sec. 88. While it is true that to constitute a valid declaration of trust, it must appear from the language used that such was the intention of the testator, and that the terms, subject matter, beneficiaries, etc., must be so reasonably certain as to be capable of enforcement, it is equally true that specific language, declaratory of a trust, is not necessary, provided the intention is clear and the other requisites are found. Tt is not necessary that the title be given in express terms to the trustees. If the trust is otherwise manifested and a trustee named, he will, by implication, take such title and estate as is necessary to enable him to execute the trust. Smith v. Proctor, 139 N. C., 314. In Payne v. Sale, 22 N. C., 455, it is held, in accordance with the authorities, both in England and this country, that, in the construction of wills, the estate given to a trustee is to continue for so long a period as is necessary to enable him to execute the — 220 — trust. Looking to the entire will and the codicil, we have no doubt that it was the purpose and intention of the testator to create a trust and that, upon the settlement of his estate by Mr. Haywood and Mr. Robertson, as executors, they should, as trustees, at once hold and invest the corpus of the residue given to his daughter to preserve for her use and benefit, during her life, and at her death to pay over and deliver to those who may be entitled, under the “limitations and conditions” imposed upon the estate. We should be inclined to the same opinion if he had not named trustees, but any doubt of his intention is removed by the fact that he has named plaintiffs as trustees, “to perform and carry out the trusts therein declared.” We see no difficulty in carrying out his intention. The plaintiffs, as executors, will turn over to themselves, as trustees, the estate in their hands, keep the same invested and pay over the income during her minority, to the Wachovia Loan and Trust Company, guardian, and, when she shall arrive at full age, pay over such income to her during the remainder of her life and, at her death, deliver the property to such person or persons as may be entitled under the terms and provisions of the will. It is conceded that the “limitations and conditions” applied to the estate do not apply to the excess of the income, that being given absolutely to Louise M. Holt. The Court has the power and, upon application may, in this action, provide for a fair division of the commissions on the income between the trustees and the guardian. Both should not receive full commissions. It is also within the power of the Court to make such other and further orders as may, upon due notice, be found necessary to meet such conditions as may arise. ■ No difference in respect to the rights of the legatees of Ohas. T. Holt, or the duty of the trustees, exists between the proceeds of the insurance policies and stocks, or other personalty, and the proceeds of the “Linwood Plantation.” The — 221 — direction contained in tbe will of Governor Holt to bis executors to sell tbe land, operated as an equitable conversion, so that tbe beneficiaries, including Cbas. T. Holt, took tbe proceeds as personalty. Although tbe sale was not made until after bis death, bis interest passed as money to bis executors. Tbe conversion took place at tbe death of Governor Holt, Benbow v. Moore, 114 N. C., 263. Tbe judgment of bis Honor, as indicated in this opinion, must be Affirmed.