Shoup v. AMERICAN TRUST COMPANY , 245 N.C. 682 ( 1957 )

97 S.E.2d 111 (1957) 245 N.C. 682

Frank SHOUP
v.
AMERICAN TRUST COMPANY, a corporation, Executor and Trustee of the Estate of Curtis B. Johnson, Deceased, George Lee, S. M. Lee, Jr., and Harry Lee.
D. Watson SMITH
v.
AMERICAN TRUST COMPANY, a corporation, Executor and Trustee of the Estate of Curtis B. Johnson, Deceased, George Lee, S. M. Lee, Jr., and Harry Lee.
C. W. WALLACE
v.
AMERICAN TRUST COMPANY, a corporation, Executor and Trustee of the Estate of Curtis B. Johnson, Deceased, George Lee, S. M. Lee, Jr., and Harry Lee.

No. 246.

Supreme Court of North Carolina.

March 27, 1957.

Carswell & Justice, B. Kermit Caldwell, Charlotte, for plaintiffs.

Helms & Mulliss, John D. Hicks, Charlotte, for American Trust Co.

Taliaferro, Grier, Parker & Poe, and Covington & Lobdell, Charlotte, for defendants S. M. Lee, Jr. and Harry Lee.

Cochran, McCleneghan & Miller, Charlotte, for defendant George Lee.

DENNY, Justice.

The appellants seriously contend that the plaintiffs, being only part-time help, were not "employees of The Charlotte Observer" within the meaning of the will of Curtis B. Johnson and, therefore, the trial court erred in ruling that plaintiffs are entitled to legacies under the provisions of his will, citing Schouler on Wills (5th Ed.), Vol. 1, section 566a; Page on Wills, Lifetime Edition, Vol. 3, section 1035; Rood on Wills, section 460; Metcalf v. Sweeney, 17 R.I. 213, 21 A. 364, and In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12.

It is stated in the above cited section of Schouler on Wills: "A devise or legacy is not unfrequently given to a servant or servants of the testator. Where a gift is made to such as may answer that description, and without identifying particular persons as the objects of one's bounty, courts incline to limit its benefit if not to strict ``household' servants, at least to such as spend their whole time in the master's employ; not extending the gift, in its scope, to persons who come back and forth for casual employment and work also for others."

The cited section of Page on Wills contains the following language: "A gift to employes or servants is a gift to those who are employed with some degree of regularity and continuity. It does not include those who do merely casual work for the designated employer. A gift to ``such servants as shall be in my employ at my death' does not include persons who were hired a day or so at a time to assist the regular servants."

Section 460 of Rood on Wills states: "Gifts to servants, unexplained, include only those directly and regularly employed."

The case of Metcalf v. Sweeney, supra, involved the interpretation of a provision in the will of one Henry J. Steere, reading as follows: "I direct my said executor to transfer and pay over to such servants as shall be in my employ at my death the sum of twelve thousand dollars in such manner that each of said servants shall receive equal portions of said sum."

There were six servants employed by the testator regularly and continuously at the time of his death. Mrs. Annie Crosby claimed to be entitled equally with the six. The opinion recites the following with respect to Mrs. Crosby's employment: "The most trustworthy testimony as to the extent of her employment comes from a Miss Arnold, housekeeper for Mr. Steere, who testifies from memoranda made for purposes of payment. She testified that Mrs. Crosby worked 37 days in 1885, 131 in 1886, 65½ in 1887, 34 in 1888, and 35 in 1889; that as a rule she was not employed more than two days a week, and then to help the regular servants."

Upon this evidence, the Court held: "It seems to us that the service rendered by her lacks the continuity, the fixity and permanence, of relation that is needed to give validity to the claim. Our decision is that she is not entitled to share in the bequest."

Likewise, the appellants here, in support of their contention that these plaintiffs were not employees within the meaning of the provisions of the will of Mr. Johnson, recite the following statement from the opinion in In re Will of Johnson, supra: "The solution of the problem is 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 it is not also within the intention."

In our opinion, the foregoing authorities do not support the appellants' contention in light of the facts before us. It is clear that Metcalf v. Sweeney, supra, as well as the textbook authorities cited, support the view that the servant or employee should be excluded where the employment was casual, but included where there was continuity and permanence of employment. Therefore, it becomes pertinent and important to see what is meant by "casual employment." Black's Law Dictionary, 2nd Edition, page 288, defines "casual" in this connection as meaning "occasional; incidental; happening at uncertain times; not stated or regular." In the case of Van Nuys v. Levine, 165 A. 885, 886, 11 N.J. Misc. 309, the Court defined as "casual employment," employment for "a particular job which is not to be continued at regular or recurring intervals." In Dobrich v. Pittsburgh Terminal Coal Corp., 145 Pa.Super. 87, 20 A.2d 898, 900, the Court quoted with approval from the case of Cochrane v. William Penn Hotel, 140 Pa.Super. 323, 13 A.2d 875, affirmed 339 Pa. 549, 15 A.2d 43, the following: "Applying it [casual] as practically as possible to the subject of employment, it may be said in general that if a person is employed only occasionally, at comparatively long and irregular intervals, for limited and temporary purposes, the hiring in each instance being a matter of special engagement, such employment is casual in character. On the other hand, even though an employment is not continuous, but only for the performance of occasional jobs, it is not to be considered as casual if the need for the work recurs with a fair degree of frequency and regularity, and, it being thus anticipated, there is an understanding that the employee is to perform such work as the necessity for it may from time to time arise." Likewise, in Flynn v. Carson, 42 Idaho 141, 243 P. 818, the Court held that regular recurring employment, though only on Saturday nights, of an extra bus trip, is not a "casual employment." Moreover, the above quotation from Page on Wills contains the statement that "a gift to employes or servants is a gift to those who are employed with some degree of regularity and continuity."

In the case of Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 593, this Court, in discussing what is and what it not "casual employment," quoted with approval from the opinion in Hoffer Bros. v. Smith, 148 Va. 220, 138 S.E. 474, the following: "The test is the nature of the employment and not the nature of the contract. An employment cannot be said to be casual where it is in the usual course of the trade, business, or occupation of the employer. But it is casual when not permanent nor periodically regular, but occasional, or by chance, and not in the usual course of the employer's trade or business." Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653; In re Monroe, Ex'rs, 132 Misc. 279, 229 N.Y.S. 476; Cox v. Brown, 227 Mo.App. 157, 50 S.W.2d 763. Cf. Raines v. Osborne, 184 N.C. 603, 114 S.E. 846.

The facts revealed by the record on appeal in the instant case lead us to the conclusion that, while these plaintiffs had not been full-time employees of The Charlotte Observer for twenty years at the time of the death of the testator, Curtis B. Johnson, nevertheless, they had been with the paper as regular and continuous employees of The Observer for that period of time and that their employment was in no sense casual. It is conceded by all parties that the time spent in the military service by any employee of The Observer, during World War II, should not be considered in ascertaining the period of employment with The Observer. Consequently, we hold that the plaintiffs are entitled to the legacies bequeathed "to all employees of The Charlotte Observer who have been with the paper for twenty years or more." We think these plaintiffs come within the letter and the intention of the testator when the language used by him is given its natural and ordinary meaning. Furthermore, we find nothing in the language used that supports the view that the testator intended to limit the benefits to "all employees of The Charlotte Observer who have been with the paper for twenty years or more" to fulltime employees only. Marks v. Thomas, 238 N.C. 544, 78 S.E.2d 340; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; Citizens Nat. Bank v. Phillips, 235 N.C. 494, 70 S.E.2d 509.

The appellants are relying on certain extrinsic evidence introduced by them in the hearing below, among which was a form letter sent out over the facsimile signature of Mr. Johnson to the regular full-time employees of The Observer Company in December 1949, more than 2½ years after he had executed his will, to show his intent in connection with the use of the word "employees." The appellants contend the letter shows clearly that Mr. Johnson did not consider these plaintiffs as employees. On the other hand, the appellants assign as error extrinsic evidence introduced by the plaintiffs which tends to show The Observer Company and Mr. Johnson recognized them as employees of The Observer.

Ordinarily, extrinsic evidence is admissible to identify persons embraced within a class to whom a devise or bequest has been made. However, in the absence of ambiguous language in the will, extrinsic evidence, either parol or written, may not be admitted "to vary, contradict, or add to the terms of the will, or to show a different intention on the part of the testator from that disclosed by the language of the will, * * *" 57 Am.Jur., Wills, section 1040, page 674; Field v. Eaton, 16 N.C. 283; Reeves v. Reeves, 16 N.C. 386; Blacknall v. Wyche, 23 N.C. 94; Kinsey v. Rhem, 24 N.C. 192; Barnes v. Simms, 40 N.C. 392, 49 Am.Dec. 435; Thomas v. Lines, 83 N.C. 191; Wooten v. Hobbs, 170 N.C. 211, 86 S.E. 811; Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690, and cited cases; Annotation— Will—Construction—Extrinsic Evidence, 94 A.L.R. 26.

The remaining assignments of error, in our opinion, present no prejudicial error. The judgment of the court below will be upheld.

Affirmed.