Gold v. Price , 24 N.C. App. 660 ( 1975 )

211 S.E.2d 803 (1975) 24 N.C. App. 660

David Jack GOLD, Executor of the Last Will and Testament of Edna P. Gold, Deceased, Plaintiff,
v.
Elmer PRICE et al., Defendants.

No. 7427SC933.

Court of Appeals of North Carolina.

February 19, 1975.

Joseph M. Wright, Shelby, for plaintiff-appellee, Executor of the Estate of Edna P. Gold, deceased.

Reuben L. Elam, Shelby, for defendant-appellant, Elmer Price.

Hamrick, Mauney & Flowers by Joe Mauney, Shelby, for defendant-appellee, Trustees of Sandy Plains Baptist Church.

MORRIS, Judge.

In their first assignment of error defendants contend the trial court erred in holding that testatrix did not create a trust for the maintenance of her grave and Tom Gold's grave. We find this assignment of error without merit for several reasons. First, as we pointed out in Starling v. Taylor, 1 N.C.App. 287, 290-291, 161 S.E.2d 204, 207 (1968), "[i]t is well settled in this State that three circumstances must concur in order to constitute a valid trust: (1) sufficient words to raise a trust, (2) a definite subject or trust res, and (3) an ascertained object. [Citations omitted.]" Here, testatrix did not provide any funds to maintain the graves. Consequently, the second element necessary to create a trust, a definite subject or res, is missing. Second, even if a trust had been created, which we do not concede, it would be an honorary trust, rather than a charitable trust, since it would not benefit the public as a whole. Such a trust is not enforceable. It may be put into effect or ignored at the option of the person named trustee since he "has only a power and not a duty to apply the property." Restatement of Trusts 2d, § 124, p. 264 (1959).

Defendants next contend that the trial court erred in concluding "that the Sandy Plains Baptist Church is the sole beneficiary under the terms of the will" and that it was "the intent of the testatrix that the word ``moneys' is synonymous with the word ``funds' and is construed in its broadest sense and includes not only cash but real property as well." They maintain that in using the language "[i]f any moneys left it will go to Sandy Plains Church", testatrix was not attempting to and did not dispose of her real property; that the real estate, therefore, passes to them, her heirs, under the rules of intestate succession. (Emphasis supplied.) We find defendants' argument persuasive.

It is well settled in this State that in construing wills "[g]enerally, ordinary words are to be given their usual and ordinary meaning . . ." Clark v. Connor, 253 N.C. 515, 521, 117 S.E.2d 465, 468 (1960). Moreover, there is a presumption that "if words are used in one part of the will in a certain sense, the same meaning is to be given to them when repeated in other parts of the will, unless a contrary intent appears." Taylor v. Taylor, 174 N.C. 537, 539, 94 S.E. 7, 8 (1917), cited in Anders v. Anderson, 246 N.C. 53, 57, 97 S.E.2d 415 (1957).

Here, testatrix possessed no special skills in drafting wills. She executed her holographic will using everyday words of conversation. Especially where, as here, testatrix earlier used the word "moneys" in its ordinary sense, we are of the opinion that the word cannot be construed to include her real property. We find additional support for our holding in 173 A.L.R. 656, 662 (1950) where it is stated that "[w]hile the word 'money' may be broad enough to include real estate, it will not be deemed to do so, unless the intention so to use it is clearly manifest on the face of the will and put beyond all reasonable doubt. [Citation omitted.]" In the case at bar we do not find language clearly manifesting an intention on the part of the testatrix to use the word "moneys" to include her real property.

Finally, we note that there is a long standing presumption against disinheritance. An "heir should not be disinherited except by express devise or by one arising from necessary implication, by which the property is given to another, . ." Dunn v. Hines, 164 N.C. 113, 117, 80 S.E. 410, 411 (1913). For the foregoing reasons, defendants' assignment of error is sustained and the decision of the trial court is hereby reversed.

Reversed.

PARKER and HEDRICK, JJ., concur.