North Carolina National Bank v. Carpenter , 280 N.C. 705 ( 1972 )

187 S.E.2d 5 (1972) 280 N.C. 705

NORTH CAROLINA NATIONAL BANK, Executor, u/w John T. Matthews, Deceased
v.
O. B. CARPENTER et al.

No. 72.

Supreme Court of North Carolina.

March 15, 1972.

Wardlow, Knox, Caudle & Knox by C. Ralph Kinsey, Jr., and Lloyd C. Caudle, Charlotte, for defendant appellants O. B. Carpenter and W. F. Thomason.

Boyle & Alexander by B. Irvin Boyle and R. C. Carmichael, Jr., Charlotte, for defendant appellee Claradell H. Matthews.

Blakeney, Alexander & Machen by Brown Hill Boswell, Charlotte, for plaintiff appellee.

HIGGINS, Justice.

The appellants contend that Items IV and V of the will are specific legacies contemplating the gift of stock according to conditions at the time the will was executed rather than at the time of the testator's death. They claim that all accretions resulting from the stock split should go to the legatees. As authority they cite a number of cases, among them decisions of this Court in Smith v. Smith, 192 N.C. 687, 135 S.E. 855; Shepard v. Bryan, 195 N.C. 822, 143 S.E. 835; and Wachovia Bank & Trust Co. v. Dodson, 260 N.C. 22, 131 S.E.2d 875.

In Shepard v. Bryan, supra, the Court discussed at length the different types of legacies. However, the Court did not have before it and did not deal with the specific question now presented. Smith v. Smith, supra, and Wachovia Bank & Trust Co. v. Dodson, supra, involved accretions which occurred after the testator's death and after the legatees' rights had accrued.

In cases from other jurisdictions, judges—some text writers joining them— have advanced an interesting theory, somewhat professorial in its approach, contending that stock splits and stock dividends occurring after the execution of a will are merely changes in form and not in substance and should go to the legatee even though they were declared and delivered to the testator during his lifetime. In short, they contend in such case, the will should speak as of the date of its execution rather than the date of the testator's death. The argument is not at peace either with our statute or our decided cases. Acceptance of appellants' theory would begin a countdown on our rule that a will becomes effective at the testator's death unless a contrary intent appears from the language of the will. This Court has been consistent in holding that the dominant purpose in construing a will is to ascertain and give effect to the testator's intent. Intent must be found in the words he used, in the setting in which he used them. Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298; Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246. "Evidence cannot be heard to explain, add to, take from, modify, or contradict a will when its terms plainly indicate the testator's purpose as to persons or things mentioned in it . . . ." In re Will of Farr, 277 N.C. 86, 175 S.E.2d 578.

At the time the testator executed the will he owned one-half (900 shares) of the capital stock in Wil-Mat Corporation. The appellants evidently were employed by Wil-Mat at the time the will was executed, for the testator conditioned his gift on their employment by Wil-Mat at his death. The clear intent is that each legatee's right to the gift was to be determined at the testator's death. The clear wording of the will neither requires nor permits a different construction.

The controversy arose because of the capital restructure between the date of the will and the date the testator died. The restructure was completed one year, three weeks and three days after the will was executed. The testator lived thereafter for one year, nine months and eleven days. With full knowledge of the increase in the number of his shares, he permitted the bequest to remain at ten shares for each legatee. Nothing whatever indicates any dissatisfaction with the terms of the will.

G.S. § 31-41 provides: "Every will shall be construed, with reference to the real and personal estate comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." A will takes effect and speaks as of the testator's death. Wachovia Bank & Trust Co. v. McKee, 260 N.C. 416, 132 S.E.2d 762.

We find nothing in the will which indicates the complaining legatees are entitled to more than the ten shares provided in the will. "The Court can no more make the language of a will than it can make the will. Where there is language of doubtful meaning used in the will, for the purpose of interpreting the meaning of such doubtful language the court may try to ascertain the intention of the testator. But some language is too plain, the meaning too obvious, to admit of interpretation. In such cases the language of the testator must be taken to mean what it says." Whitfield v. Garris, 131 N.C. 148, 42 S.E. 568. "The jurisdiction of the courts may be invoked to construe a will when, and only when, the language used in the will is so uncertain, vague, ambiguous, or conflicting that it creates a doubt as to the true intent of the testator. If the devise is couched in language which is clear and has a recognized legal meaning, there is no room for construction." Rhoads v. Hughes, 239 N. C. 534, 80 S.E.2d 259.

The language in Items IV and V of the will says "ten (10) shares" and ten (10) shares it is.

The Court of Appeals was correct in so deciding and its decision is

Affirmed.