Wing v. Wachovia Bank & Trust Co.

VAUGHN, Judge. This is a proper case for declaratory relief in the form of instructions to the trustee under the Uniform Declaratory Judgment Act, G.S. Chap. 1, Art. 26. “This article is declared to be remedial, its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered.” G.S. 1-264; see also G.S. 1-256. A trustee can obtain a declaration of rights concerning any question arising in the administration of a trust. G.S. 1-255(3). Litigation of the issues now raised before us is unavoidable once a great niece or great nephew of testator dies. The income beneficiaries and potential ultimate takers of the corpus are handicapped in making financial and estate planning decisions because of the uncertainty in the ultimate distribution of the trust corpus. The beneficiaries of both the income and corpus of the trust are harmed each time litigation occurs because the trust bears much of the cost of such litiga — 408 — tion. All parties who have an interest in the decision of this case, who are now above sixty in number, are now within the jurisdiction of the Court. None of the diverse parties to the current action has raised on appeal in his or her brief or on oral argument any objection that our ruling on the merits of this action is unnecessary or premature. The relief given by the Uniform Declaratory Judgment Act as adopted in this State is appropriately invoked in this case where litigation appears to be unavoidable. Consumers Power v. Power Co., 285 N.C. 434, 206 S.E. 2d 178 (1974); Insurance Co. v. Bank, 11 N.C. App. 444, 181 S.E. 2d 799 (1971). We must not only try to determine the testamentary intent but must apply the proper rules of law to the dispositive provisions of the will. We must determine testator’s intent in two respects: (1) what is to be the ultimate distribution of the trust corpus and (2) what is to happen to the distribution of net trust income to seventeen great nieces and great nephews who qualify for its receipt, once one of them dies. “Probing the minds of persons long dead as to what they meant by words used when they walked this earth in the flesh is, at best, perilous labor.” Gatling v. Gatling, 239 N.C. 215, 221, 79 S.E. 2d 466, 471 (1954). I. Distribution of the Trust Corpus To aid us in determining what testator intended for the distribution of corpus, we are confronted with two alternative theories of law. On one hand, we could construe the silence of the will to indicate that testator did not intend the will to dispose of the trust corpus after the termination of the trust and conclude that it passed by intestate succession to his heirs at law at the time of his death with possession postponed until the termination of the trust. The property would then be vested with the takers by intestacy at his death as provided by the laws of North Carolina on 21 October 1946 and their respective heirs. This is the theory of the case put before us by those appellants who have adopted children. On the other hand, the will might be construed to create a gift by implication of the corpus of the estate to the great nieces and great nephews or to their estates in the proportion of their income interests at the time of termination of the trust. This is the theory of the case put to us by appellees who — 409 — now receive the trust income and who do not have adopted children. The doctrine of bequest or gift by implication is a doctrine long recognized in this State. Finch v. Honeycutt, 246 N.C. 91, 97 S.E. 2d 478 (1957); Efrid, v. Efrid, 234 N.C. 607, 68 S.E. 2d 279 (1951); Burney v. Holloway, 225 N.C. 633, 36 S.E. 2d 5 (1945); Burcham v. Burcham, 219 N.C. 357, 13 S.E. 2d 615 (1941); Ferrand v. Jones, 37 N.C. 633 (1843); 4 Bowe-Parker, Page on Wills, § 30.18 (4th ed. 1961). Quoting in part from Underhill on Wills, our Supreme Court has said: “ ‘If a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express or formal words, the court may supply the defect by implication, and so mould the language of the testator as to carry into effect, so far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.’ 1 Underhill on Wills, section 463. It is generally held that a devise of the use, income, rents, profits, efc., of property, amounts to a devise of the property itself, and will pass the fee unless the will shows an intent to pass an estate of lesser duration.” Burcham v. Burcham, 219 N.C. at 359, 13 S.E. 2d at 616. Along with the doctrine of gift by implication, there is the presumption that a testator does not intend to die intestate as to any portion of his estate. Poindexter v. Trust Co., 258 N.C. 371, 128 S.E. 2d 867 (1963). The intent of the testator is the polestar in our analysis of a will. Wilson v. Church, 284 N.C. 284, 200 S.E. 2d 769 (1973). Those parties seeking to have the corpus of the trust estate vest in the hands of those seventeen great nieces and great nephews now receiving income contend there is sufficient evidence on the face of the will to indicate this is the manifest intent of testator. At no point does he express what these parties contend was his intent. They would imply his intent from the following factors. (1) The gifts of income from the trust to siblings, nieces and nephews were expressly limited to life estates by phrases “for and during [his/her] natural life” or “for and during their lifetime.” The gift of income to great nieces and great nephews on the other hand has no income for life only restric — 410 — tions. A survival requirement is never implied. Thus, the income until termination of the trust will go in proportion to the estate or heirs of a great niece or great nephew dying before termination of the trust. (2) The trust income was initially eighty percent directed to the great nieces and great nephews and the remaining twenty percent eventually is to benefit this class. This was a residuary trust holding the great bulk of the estate. The ap-pellees would imply that as all of the income went, so went all of the corpus in the mind of testator. (3) The gifts of income to great nieces and great nephews were to a class which he wanted treated equally. It was a per capita distribution and not per stirpes. By intestacy, there would be a per stirpes division of the property in the generation of great nieces and great nephews inconsistent with the per capita distribution of income to that generation. (4) Intestacy would place an interest in the estates of testator’s brothers and sister and the children of one brother who predeceased him which would be inconsistent with the trust income provision to these parties. (5) This is a residuary trust into which the entire estate was placed after taxes, expenses and specific bequests. All of these arguments for implying a gift of corpus come from express treatment of the income. The simple fact is that nothing is said by testator about the corpus. The silence we think is controlling in this case. We must remember that we are dealing with the will of a man lettered in the law and familiar with the technical sense the law gives to words. Where the doctrine of bequest by implication is applied, courts are generally involved with a different set of circumstances. We do not have here a case where a testator is under an erroneous impression as to the state or quality of his property holdings. See, e.g., Efrid v. Efrid, supra. It is not a case of a layman misusing legal words or inartfully expressing himself. See, e.g., Burcham v. Burcham, supra. It is not a case of construing words in their lay or legal meanings. See, e.g., Poindexter v. Trust Co., supra. In certain cases, a trust beneficiary has been given the entire beneficial interest of the trust even though the instrument speaks only of income to him. Poindexter v. Trust Co., supra. “[T]he devise of all the income and profits from the property, nothing — 411 — else appearing, carries with it the corpus.” Burney v. Holloway, 225 N.C. at 637, 36 S.E. 2d at 7-8. “Where there is a gift of income without limitation of time, express or implied, there is a gift of the entire beneficial interest.” 2 Scott, The Law of Trusts, § 128.2, p. 1013 (3d ed., 1967) (emphasis added), In testator’s will, there is something else. It is an express termination of the trust at the death of the last of his brothers, sister, nieces and nephews, great nieces and great nephews alive at his death. While the income may be paid well into the next century, it is not without limitations. To apply the doctrine of bequest by implication, the probability that this was the intention of the testator “must be so strong that a contrary intention ‘cannot reasonably be supposed to exist in testator’s mind,’ and cannot be indulged merely to avoid intestacy.” Burney v. Holloway, 225 N.C. at 637, 36 S.E. 2d at 8; see also Ravenal v. Shipman, 271 N.C. 193, 155 S.E. 2d 484 (1967). In this case, a contrary intention can be reasonably supposed that this lawyer-testator intended a partial intestacy. By adopting the judicial doctrine of bequest by implication, we would be adding words to the will that he neither expressed nor implied to the point that we would express them for him. We would be rewriting his will. Testator made no further distribution of the property after the termination of the trust and its income. The rule is sometimes expressed to the effect “that a testamentary gift of the income or interest of a fund without limitation as to time is, where no other distribution is made thereof, a gift of the principal.” 80 Am. Jur. 2d Wills § 1389, p. 464. Clearly in this case there is a time limitation. We do not make as much of the failure to make further distribution in the case of this will as we would in that of a person not of testator’s profession. The silence of this testator, trained in the law, implies more than any judicial construction tacked on to his express words might imply. The absence of express provision on the distribution of the corpus leads us to conclude that he intended it to pass by intestate succession at the termination of the trust. “[W]here a will is reasonably susceptible of two constructions, the one favorable to complete testacy, the other consistent with partial intestacy, in application of the presumption, — 412 — the former construction will be adopted and the latter rejected. This does not mean, however, that one must choose between a will or no will. A testator may elect to dispose of part of his property by will and leave the remainder for disposition as in case of intestacy.” Ferguson v. Ferguson, 225 N.C. 375, 377-78, 35 S.E. 2d 231, 232-33 (1945) (citations omitted); see also Kidder v. Bailey, 187 N.C. 505, 122 S.E. 22 (1924); McCallum v. McCallum, 167 N.C. 310, 83 S.E. 250 (1914); Galloway v. Carter, 100 N.C. 111, 5 S.E. 4 (1888). We hold that the remainder interest in the corpus of the trust, which was the bulk of the estate, passed by intestate succession to the heirs of testator with possession postponed until termination of the trust. The disposition of property of a person dying intestate is governed by the statutes in force at his death. Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836 (1950). Thus, under the rules of descent and distribution, then in effect, the three living siblings each inherited one quarter of the corpus. The three children of the brother who predeceased testator inherited the remaining quarter. G.S. 28-149, Rule 5 and G.S. 29-1 (repealed 1959 N.C. Sess. Laws c. 879); In Re Estate of Poindexter, 221 N.C. 246, 20 S.E. 2d 49 (1942). Whether adopted great nieces or great nephews share in the corpus of the trust depends on the disposition made for them by the intestate takers of testator from whom they inherit. II. Distribution of Trust Income on the Death of an Income Beneficiary In the judgment appealed from, the trial judge concluded as a matter of law that the death of a great niece or great nephew should not terminate his or her right to income but that such should continue to his estate, intestate heirs or testamentary beneficiaries until the termination of the trust. This portion of the order has not been briefed or argued by appellants. “Where by the terms of the trust the income is payable to two or more beneficiaries for life, and it is provided that on the death of the survivor of the life beneficiaries, or on the happening of some other event, the trust shall terminate, and the principal shall be distributed among designated persons, but there is no express provision as to the disposition of the income payable to a life beneficiary in the event of his — 413 — death prior to the time fixed for the termination of the trust, the question arises what disposition should be made of such income. The answer ultimately depends upon the manifestation of intention of the settlor. Four possible dispositions might be made of the share of the income of the deceased beneficiary: (1) it might be paid to the surviving life beneficiaries; (2) it might be paid to the estate of the deceased beneficiary; (3) it might be paid to the estate of the settlor as property not disposed of by his will; (4) it might be accumulated and on the termination of the trust paid to the persons entitled to the principal of the trust estate.” 2 Scott, The Law of Trusts, § 143 p. 1097. The trial judge’s order picked the second of these four alternatives and, in this, he was correct. Testator provided for increase to the class of great nieces and great nephews receiving income from the trust within the limits of the rule against perpetuities but established no survivor-ship requirement. Wing v. Trust Co., 35 N.C. App. 346, 241 S.E. 2d 397, cert. den., 295 N.C. 95, 244 S.E. 2d 263 (1979). We will not imply a condition of survivorship. Simes, Law of Future Interests, § 103 (2d ed. 1966). He also gave an express time to terminate the trust. In light of these provisions, testator intended that income could be paid to the estate of a deceased beneficiary until the trust terminated. See Thompson v. Martin, 281 Mass. 41, 183 N.E. 51 (1932); contrast In re Hicks’ Estate, 345 Mich. 448, 75 N.W. 2d 819 (1956). The handling of the trust income going to brothers, sister, nieces and nephews reinforces this reading of the will. In providing for these parties, testator meticulously provided for conditions of survivorship and how income was to be paid over in the event of a death. The fact that he has not done so with the distributions to great nieces and great nephews is an indication that the income should not pass to other life beneficiaries on the death of any income beneficiary or to the corpus beneficiaries until the trust terminates. In conclusion, the trustee should be governed by the following. (1) Until termination of the trust, the trust income, in a portion which should ultimately reach one hundred percent, is to be paid equally to the seventeen great nieces and great nephews — 414 — during their natural lives and, on death, to their respective heirs or beneficiaries. (2) When the last niece, nephew, great niece or great nephew alive at testator’s death dies, the trust will terminate and the assets will be distributed to the intestate takers of Alexander B. Andrews II, or those who take through these intestate takers. Reversed and remanded. Judges Parker and Hill concur.