Haywood v. Wright

Hoke, J., after stating the case: Our decisions are to the effect that when specific personal property is bequeathed to one for life, remainder over, the executors, unless the exigencies and proper administration of the estate otherwise require, may assent to the legacy and deliver the property to the life tenant. He is, ordinarily, not charged with the duty of looking further after the property, and of insuring its delivery intact to the remainderman. This rule is qualified, or rather a different principle prevails, when a mixed fund, under ^a general residuary clause eo nomine ■is given to one for life, remainder over. In such case the executor is, ordinarily, required to sell the property, pay the interest on the proceeds to the life tenant, and hold the fund for the remainderman under the will. Both of these positions are — 432 — established as rules of interpretation because they are supposed the better to carry out the will of the testator, and both yield when a different intent is apparent from the terms of the will. These familiar principles have been discussed and applied in numerous cases before this Court, as In. re Knowles, 148 N. C., 461; Holt v. Holt, 114 N. C., 241; Britt v. Smith, 86 N. C., 305; Bitch v. Morris, 78 N. C., 377; Tayloe v. Bond, 45 N. C., 5; Jones v. Simmons, 42 N. C., 178; Smith v. Barham, 17 N. C., 420, and are in accord with doctrine very generally accepted here and elsewhere. Applying the controlling principle, we think it clearly appears that the property bequeathed to the feme defendant under the will was impressed with a trust, and the same is to be held, managed and controlled, and the net income therefrom paid to her during hen life, and the corpus of the fund to be delivered to those who may be entitled thereto as remainder-men under the will, to be held by the executors, while the proper care and administration of the estate requires that it remain in their hands as such, and to be then turned over to themselves as trustees to be held and dealt with and applied as stated. This intent, in our opinion, is disclosed in each and every portion of the will that bears upon the question presented. In reference to the preferred stock, this being an investment of the proceeds arising from a sale of the principal part of the Linwood farm under item 6, and of the sum realized from the mixed fund disposed of by item 7, the meaning of the will is too plain for construction; the contrary view was not seriously urged by counsel. But as to the common stock arising from the bequest in item 4, we are of opinion that a proper consideration of that item and of the other portions of the will referring thereto and affecting its construction undoubtedly requires that the same interpretation should prevail. In the 4th item, the stock is bequeathed to the five children of the testator: the portion to his sons absolutely to them in fee, and that to the daughters, one of them the feme defendant, to them for life, remainder over; and, after making this disposition of the fund, the clause then proceeds : “But should either of my said daughters die leaving no child or children or the issue of such, alive at the time of her death, then with remainder, as to share of the one so dying, to my other children, share and share alike, and the issue of such as may be dead — the issue representing their parent and taking such share as he or she would have taken, if alive — on the same limitations and trusts as hereinbefore expressed as. to their own shares devised and bequeathed to them in this last will and testament.” — 433 — It will thus be seen that after making the distinction between the interest of the sons and daughters by giving the daughters only an estate for life, remainder over, the testator affects the remainder with a contingent limitation, and then refers to the provision as having created a trust, “on the same limitations and trusts as hereinbefore expressed.” In item 5 provision is made for a sale of'the entire property, or of the interest of either legatee, and in- case of sale of any individual interest the vendor is required to give the others the option of purchasing at a “fair and bona fide price before selling out of the family”; and whether the entire property, or an individual interest, is sold, the share of the daughters is to be received by the executors and the proceeds invested in trust to pay the annual interest on each one’s share during her natural life, and then over, etc., and with the remainder affected by like limitations, as in item 4, and expressed as follows: “But should either of my said daughters die leaving no child or children or the issue of such, alive at the time of her death, then the share of the one so dying in trust for my other children surviving, share and share alike, and the issue of such as may be dead — the issue representing their parent and taking such share as he or she would have taken, if alive — -on the same limitations and trusts as hereinbefore expressed as to their own shares, devised and bequeathed to them in this last will and testament.” Again, in item 6, which deals with the Linwood farm, the same is devised to his five children, “the shares of the sons to them and their heirs in fee, and the shares of the daughters on same limitations and trusts as hereinbefore expressed as to their shares in the devise and bequests to them contained in items 4 and 5, etc.” The executors are then empowered, in their discretion, to sell said farm and divide out the proceeds and pay over the same, “except as to the shares therein of the daughters, which they shall invest and hold in trust for them for life, with remainder as expressed in regard to the purchase money bequeathed in item 5,” etc. And in item f, disposing of miscellaneous property, “the shares of the daughters are to be held under the same limitations and trusts as hereinbefore set out in items 4 and 5 of this last will and testament.” Further, in the codicil of 26 January, 1892, in giving the feme defendant 126 shares of stock in the Granite Manufacturing Company, to make her equal with his other children in the amounts received by them, the testator is careful to state that — 434 — the bequest is to tlie legatee for life, remainder, “as stated in item 4 of my last will and testament, and in the same limitations and trusts as expressed as to her share as to the bequest to her in said item 4.” It will thus appear that whenever the testator refers to the share bequeathed to his daughters, either in the will or codicils, he speaks of it as a trust; and, finally, in the selection of his executors he appoints them as executors “and as trustees to carry out and perform the trusts hereinbefore declared.” The interpretation we have given is confirmed, if confirmation is necessary, by the consideration that ownership and control on the part of the trustees is reasonably required for the sale and transfer and reinvestment of the fund as contemplated in item 5, and for the preservation of the same for the benefit of the re-maindermen who may be eventually entitled under the provisions of the different items of the will. The disposition of this case is, in fact, controlled by the decision of the Court in Haywood v. Trust Co., 149 N. C., 208; that being a case construing a will in which the expressions favoring a trust are much less pronounced than in the one before us. The same authority is also to the effect that, when the proper administration and well ordering of the estate permits, and the executors are ready to settle as such, it is their right and duty to turn the property affected by the trust over to themselves as trustees, to be controlled and managed according to the provisions of the will and as the best interest of the fund may require. In the case referred to, speaking to the questions presented, Associate Justice Connor, for the Court, said: “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. It is not necessary that the title be given in express terms to the trustees. If the trust is — 435 — otherwise manifested and a trustee named, be will, by implication, take such title and estate as is necessary to enable bim to execute tbe trust. Smith v. Proctor, 139 N. C., 314. In Payne v. Sale, 22 N. C., 455, it is beld, in accordance witb tbe authorities, both in England and this country, that, in tbe construction of wills, tbe estate given to a trustee is to continue for so long a period as is necessary to enable him to execute tbe trust. Looking to tbe entire will and tbe codicil, we have no doubt that it was tbe purpose and intention of the testator to create a trust, and that, upon tbe settlement of bis estate by Mr. Haywood and Mr. Eobertson, as executors, they should, as trustees, at once bold and intest tbe corpus of tbe residue given to bis daughter to preserve for her own use and benefit, during her life, and at her death to pay over and deliver to those who may be entitled, under tbe ‘limitations and conditions’ imposed upon tbe estate. We should be inclined to tbe same opinion if be bad not named trustees; but any doubt of bis intention is removed by tbe fact that be has named plaintiffs as trustees, ‘to perform and carry out tbe trusts therein declared.” We see no difficulty in carrying out this intention. Tbe plaintiffs, as executors, will turn over to themselves, as trustees, tbe estate in their bands, keep tbe same invested and pay over tbe income during her minority, to tbe "Wachovia Loan and Trust Company, guardian, and, when she shall arrive at full age, pay over such income to her during tbe remainder of her life and, at her death, deliver tbe property to such person or persons as may be entitled under tbe terms and provisions of tbe will. It is conceded that tbe ‘limitations and conditions’ applied to tbe estate do not apply to tbe excess of tbe income, that being given absolutely to Louise M. Holt.” Having expressed tbe opinion that tbe will creates a trust as to tbe property bequeathed to tbe daughters under item 4, it is not necessary to determine whether tbe consolidation of tbe different corporations and tbe substitution of stock therein amounts to a sale of tbe property, so as to bring tbe proceeds directly under tbe provisions of item 5, and we have purposely refrained from deciding tbe question. Section 1186 of Eevisal, to which we were referred by counsel, and which provides for tbe voting of stock in a corporation by life tenants, does not affect tbe question. This is merely a statutory provision for tbe government and well ordering of corporations, and applying to life tenants who are owners of stock as such and without qualification. Having decided that this stock is to be held and controlled by tbe trustees, section 1185 — 436 — of Revisal is the section controlling tbe matter, tbe section wbicb provides for tbe voting of stock by administrators, guardians and trustees. There is no error in tbe judgment of tbe court, and same is Affirmed. Walker, J., did not sit.