Moore v. Langston , 251 N.C. 439 ( 1959 )

111 S.E.2d 627 (1959) 251 N.C. 439

Helen B. MOORE
v.
Allen LANGSTON, Executor of the Estate of Grace B. Neal, Deceased; Elizabeth Neal Franklin and husband, Worth H. Franklin; and Natalie Neal Blomquist and husband, George B. Blomquist.

No. 456.

Supreme Court of North Carolina.

December 16, 1959.

Clem B. Holding, Harris, Poe & Cheshire, by W. C. Harris, Jr., Raleigh, for plaintiff, appellee.

Allen Langston, Fletcher & Lake, by I. Beverly Lake, Raleigh, for defendants, appellants.

HIGGINS, Justice.

In passing on this appeal, it becomes necessary to determine whether the first codicil was intended merely as the expression of a wish or advice to the two daughters, or whether it constituted a valid and enforceable bequest to the plaintiff.

At the date of the first codicil the testatrix was receiving from the two rental properties approximately $2,000 per month. She conveyed these properties to the corporation which she helped to organize. In payment she received stock in the corporation and its note for $50,000. The note, subject to a credit of $3,000, and a substantial block of stock in the corporation belonged to her at the time of death. It does not appear she had other rental property. At that time, the corporation was receiving approximately $2,000 per month rent from the apartments and the bowling center.

In determining the effect of the first codicil, resort must be had to all parts of the will, and, if necessary, to the attendant circumstances surrounding the testatrix at the time she made it. Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690. If the words used in a will do not of themselves make perfectly plain the maker's intent, the court may consider the circumstances and conditions surrounding the maker in order to determine the meaning. "``The discovery of the intent of the testator as expressed in his will is the dominant and controlling objective of testamentary construction, for the intent of the testator, as so expressed, is his will.' Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578, 581; Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. ``The intention of the testator need not be declared in express terms.' Wachovia Bank & Trust Co. v. Schneider, supra; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279; Wachovia Bank & Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177. ``And greater regard is to be given to the dominant purpose of the testator than to the use of any particular words.' Wachovia Bank & Trust Co. v. Schneider, supra; Geyer v. Bulluck, supra; Allen v. Cameron, 181 N.C. 120, 106 S.E. 484"; Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298, 300.

What interest, if any, did the testatrix bequeath to the plaintiff by the first codicil? "This is my wish to be carried out in my will. That my beloved sister, Helen C. Moore, receive from the rentals of my property $200 every month as long as she shall live and after her death this allowance shall stop. I want Natalie Neal and Elizabeth Neal Franklin to see that this is done." The codicil begins with the statement that the wish is "to be carried out in my will." (Emphasis added.) It provides that the $200 payment shall be terminated by the death of the legatee. Then follows: "I want Natalie Neal and Elizabeth Neal Franklin to see that this is done." (Emphasis added.) The bequest is of money ($200 per month) "from rentals." On the date the codicil was written the testatrix was receiving $2,000 per month from Wilmont Apartments and ManMur Bowling Center. Subsequently a corporation was formed by the testatrix, one of the daughters, and Mr. Langston, their attorney. The incorporators selected Wilmur Associates, Inc., as the corporate name. It seems apparent the name came from a combination of Wil, the first syllable from the name of the Apartments, and Mur, the last syllable from the name of the Bowling Center. Evidence in the record indicates other rental property (Lincoln Theatre) was conveyed to the corporation by the daughters, for which they received corporate stock. It may be inferred that the corporation was organized for the purpose of operating rental properties. There is no evidence it carried on any other business.

The apartments and the bowling center returned a monthly rental of $2,000, to the testatrix before the transfer—to the corporation afterwards. It is not difficult to understand why the testatrix, looking through the veil of the corporate structure at the source, should consider the dividends on her stock as income "from rentals." In this view, even if the legacy should be classified as specific, it would not fail if within the contemplation of the testatrix her estate had income "from rentals."

However, we think the testatrix clearly intended to bequeath to the plaintiff not a specific but a demonstrative legacy. The gift is not of rentals but of "Two Hundred Dollars every month as long as she shall live." The codicil provides that the bequest shall be satisfied "from rentals of my property."

The distinction between specific and demonstrative legacies is clearly pointed out in an exhaustive opinion by Adams, J., in the case of Shepard v. Bryan, 195 N.C. 822, 143 S.E. 835, and subsequently approved in Bost v. Morris, 202 N.C. 34, 161 S.E. 710; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. See also 73 A.L.R. 1250, and 64 A.L. R.2d 778. For the reasons pointed out in Shepard v. Bryan, the designation of a fund out of which the legacy is to be satisfied is not enough to make the bequest specific. The tendency of the courts is to hold that a bequest is not specific unless the intent clearly appears in the will.

Under the authorities cited and many others to the same effect, we conclude the bequest to the plaintiff constituted a demonstrative legacy to be satisfied first out of income from rental properties belonging to the estate, including interest from the note and dividends on the stock of Wilmur Associates, Inc. Should these prove insufficient, the remainder of the bequest may be satisfied out of other available assets of the estate.

The judgment of the Superior Court is modified to include in the rental income the interest on the note of, and the dividends from the stock in Wilmur Associates, Inc. As thus modified, the judgment of the Superior Court is affirmed.

Modified and affirmed.