In Re Will & Estate of Johnson , 233 N.C. 570 ( 1951 )

65 S.E.2d 12 (1951) 233 N.C. 570

In re JOHNSON'S WILL.

No. 521.

Supreme Court of North Carolina.

May 9, 1951.

Covington & Lobdell, Charlotte, for appellants, Ida J. Lee, et al.

Helms & Mulliss and John W. Johnston, all of Charlotte, for appellee, American Trust Co.

STACY, Chief Justice, after.stating the facts as above.

The question for decision is whether the testator intended to name, and did name, the American Trust Company as one of the executors of his estate by the tenor of his will or by conferring upon it executorial powers and duties in connection with the administration thereof. The trial court answered in the affirmative, and the parties have filed elaborate briefs with all the North Carolina decisions and many foreign authorities collected on the subject, e. g., on the one side is cited In re Leonard's Will, 218 N.C. 738, 12 S.E.2d 222 (no executor named in the will); and on the other, Dulin v. Dulin, 197 N.C. 215, 148 S.E. 175 (held executor appointed by the tenor of the will). 1 Williams Executors (7th Ed.) 281. Upon this line of demarkation the authorities are divided, and each side here seems equally confident that its position is supported by the record and the pertinent decisions or the clear weight of authority.

The sentence of the will presently in focus is this: "In addition to the above gift to the aforesaid nephews, I direct that each of them shall be paid ($25,000) Twenty Five Thousand Dollars from the assets of my estate as if and when the funds are conveniently available as determined by my wife Irving Harding Johnson who is hereby appointed my executor and the American Trust Co. of Charlotte, hereby appointed trustee of my estate".

The appellants say this sentence is too clear and unambiguous to require any interpretation; that it expresses plainly the intent of the testator and makes known his choice of a testatrix and a trustee of his estate; that the designation "executor" applies equally to a man or a woman; that the testator was a publisher, highly intelligent, fully cognizant of the difference between an executor and a trustee; that he had complete confidence in his wife's business acumen as he also nominated her president-manager of his Benevolent Association; that it is his will that is to be done, Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17, and that the language used should be given its plain and obvious meaning. Krites v. Plott, 222 N.C. 679, loc. cit. 683, 24 S.E.2d 531. The appellants stake their case on the letter of the will which they say is clear beyond cavil and capable of but a single meaning.

The appellee, on the other hand, says the conclusion of the appellants is to facile for the language employed; that joint executorial powers and duties are conferred on the widow and the American Trust Company; that they together are required to determine "if as and when" the legacies can conveniently be paid—an obligation properly belonging to those who are charged with the management of the estate; that the trust company is named trustee of "my estate", not simply of the trust properties, and that significantly the testator used the word "executor", applicable alike to both, rather than the more accurate denomination "executrix", if he had intended his widow alone to administer his estate. The appellee relies on the tenor of the will which it says reveals the appointment of the American Trust Company trustee of the estate ipsissimis verbis and coexecutor by the tenor.

The solution of the problem is to be found in the expressed purpose of the testator. His intention is his will. This intention is to be gathered from the general purpose of the will and the significance of the various expressions, enlarged or restricted according to their real intent. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention. This applies to the appointment of an executor as well as to any other provision in the will. Cannon v. Cannon, supra; Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613; Wachovia Bank & Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Harper v. Harper, 148 N.C. 453, 62 S.E. 553; 33 C.J.S., Executors and Administrators, § 22; 23 C.J. 1020; 21 Am.Jur. 405.

In searching for the intent or purpose of the testator in naming one or more personal representatives of his estate it is competent to consider the kind and character and extent of his properties; the need of business experience in their management, and the difficulties likely to be encountered in the settlement of the estate. Consequently the court should place itself as nearly as practicable in the position of the testator, so as to appreciate and understand his viewpoint and purpose at the time of the execution of the will. Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Herring v. Williams, 153 N.C. 231, 69 S.E. 140.

We find ourselves in disagreement on the question presented, but we are of opinion that the American Trust Company is entitled to administer the estate either as executor or as administrator with the will annexed. G.S. § 28-22. Hence, rather than prolong the litigation with further debate or extended discussions, we have concluded to affirm the judgment without lengthy opinions, which the briefs would seem to invite, holding that the appellants have failed to overcome the presumption of regularity or correctness or to show harmful error in the judgment on their appeal. Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342.

To prevail here, the party alleging error has the laboring oar, which he must successfully handle, and that against the tide. Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630; Cole v. Atlantic Coast Line R. R. Co., 211 N.C. 591, 191 S.E. 353. Nor is it sufficient merely to cast doubt on the accuracy of the judgment. In re Ross' Will, 182 N.C. 477, 109 S.E. 365. Prejudicial error is required to be shown, and it must be made to appear plainly, as the presumption is the other way. The appellant has the burden of showing error. Nichols v. Wachovia Bank & Trust Co., 231 N.C. 158, 56 S.E.2d 429; State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79.

The intention of the testator in respect of the appointment of the institution with which he did his banking business, the American Trust Company, as an executor of his estate, also "appointed trustee of my estate" in the same sentence, is not so wanting in clarity, equivocal or doubtful as to call for a reversal of the judgment below. It is certain he never had a business stranger like the Union National Bank in mind; it is nowhere mentioned in the will.

Affirmed.