Wachovia Bank & Trust Co. v. Grubb , 233 N.C. 22 ( 1950 )

62 S.E.2d 719 (1950) 233 N.C. 22

WACHOVIA BANK & TRUST CO. et al.
v.
GRUBB et al.

No. 670.

Supreme Court of North Carolina.

December 13, 1950.

Hudson & Hudson, Salisbury, and Charles W. Mauze, Lexington, for petitioner appellants.

Hubert E. Olive, Lexington, guardian ad litem, in propria persona.

Linn & Shuford, Salisbury, and Don A. Walser, Lexington, for Alma Lee Grubb, Appellee.

BARNHILL, Justice.

The residue of the testator's estate was devised to petitioners in trust. The residue of an estate comprehends all of the estate left by the testator at the time of his death, subject to all deductions required by operation of law or by direction of the testator. Conversely stated, the residue is that part of the corpus of the estate left by the testator which remains after the payment of specific legacies, taxes, debts, and costs of administration. Webster's New Int.Dic. (2d ed.); Callaghan, Cyc.Law Dic. (2d ed.); Wachovia Bank & Trust Co. v. Jones, 210 N.C. 339, 186 S.E. 335, 105 A.L.R. 1189.

While the exact nature and quantum of the residue cannot be determined until the administration is complete, it is formed at the death of the testator and must be ascertained as of that date. Wachovia Bank & Trust Co. v. Jones, supra; Old Colony Trust Co. v. Smith, 266 Mass. 500, 165 N.E. 657.

When such residue has been devised in trust with direction that the income therefrom shall be paid to named beneficiaries, does the income accruing during the three-year period next after the death of testator constitute a part of the corpus of the trust, or must it be accounted for as income and disbursed as such?

On this question there is some division of judicial opinion. One line of cases establishes what is known as the English rule under which such income must be added to and accounted for as part of the corpus of the estate. The other line has formulated a rule, sometimes called the Massachusetts rule, which has been adopted by the authors of the Restatement of the Law of Trusts as representative of the weight of current authority on the subject.

The latter rule is there stated as follows:

"Where a trust is created by will and by the terms of the trust the income is payable to a beneficiary for a designated period, the beneficiary is entitled to income from the date of the death of the testator, unless it is otherwise provided in the will. The rule here stated is applicable to trusts created by a specific devise or legacy, by a general pecuniary legacy, and by a residuary devise or bequest; and it is immaterial whether the same person is designated as executor and trustee. "Restatement of the Law of Trusts, sec. 234, p. 692; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; 54 A.J. 92; Annotations 70 A.L.R. 636, 105 A.L.R. 1194, and 158 A.L.R. 441.

Under this rule those to whom the income is to be paid are entitled to the income from the date of the death of testator unless it is otherwise provided in the will.

The appellants concede that the general rule, as above quoted, prevails in this jurisdiction, Cannon v. Cannon, supra, and that nothing else appearing, all the income must be disbursed as directed in the will. But they stressfully contend that it is "otherwise provided in the will"; that the language "after the expiration of three years from the date of" testator's death fixes the time the income shall begin to accrue to the use of the beneficiaries, as well as the time the payments to them are to begin. We agree that the will specifically designates the income which is to be paid to beneficiaries of the trust and that the language in the will is controlling, but we do not concur in their conclusion as to the effect of the language used by the testator.

The devise to the trustees took effect as of the date of the death of the testator. The trustees are to pay "the entire net income" derived from the trust estate to the named beneficiaries. "Entire" connotes "whole", "total", "all", "undiminished", "unimpaired", "undivided." Webster's New Int.Dic. (2d ed.) The payment of anything less than the entire net income accruing from the trust property from and after the date of the death of the testator would not suffice to meet the express directions of the testator. The beneficiaries must receive all, undiminished and unimpaired by any deduction, or by application, in whole or in part, to other purposes.

The language "after the expiration of three years from the date of my death" designates the time payments to the beneficiaries shall begin and merely postpones the enjoyment of the gift. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341; Carter v. Kempton, N.C., 62 S.E.2d 713, and cases cited.

The language used by the testator is clear. His purpose and intention as expressed thereby are controlling. Conrad v. Goss, 227 N.C. 470, 42 S.E.2d 609; Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368; Schaeffer v. Haseltine, 228 N.C. 484, 46 S.E.2d 463; Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41; Sutton v. Quinerly, 231 N.C. 669, 58 S.E.2d 709.

The testator made a similar provision in respect of the payment of specific legacies. It would seem to be apparent that his intention was to give the executors ample time within which to settle the estate, free from the demands of devisees who might become importunate. In any event, the language used discloses his intent as to the quantum of the income which was to be paid to the beneficiaries. That intent must be effectuated.

So then, whether we apply the general rule prevailing in this jurisdiction or resort to the language used by the testator, the result is the same. The net income accruing from the trust property from and after the death of the testator must be delivered to the trustees, intact, to be paid by them as directed in Item XIV(1) of the will.

The appellees move to dismiss the appeal of the plaintiffs for that they are not the parties aggrieved. They have no partisan interest in the controversy, and they are fully protected by the judgment of the court below. There was no cause for them to appeal. Even so, the appeal of the guardian ad litem is sufficient to bring the case here, and their appeal does not complicate the record. The proceeding is in rem and constitutes a necessary expense of administration of the estate now in the hands of plaintiffs as executors. The costs must, therefore, be paid out of the funds of the estate. In the light of these facts, we may pass the motion without a ruling thereon.

The judgment of the court below is

Affirmed.