Cannon v. . Cannon , 225 N.C. 611 ( 1945 )

Stacy, C. J.

This is the same case that was before us at the Fall Term, 1943, on demurrers to pleas'of estoppel or res judicata, reported in 223 N. C., 664, 28 S. E. (2d), 240, to which reference may he had for further statement of the facts.

The will is now presented for construction in a number of particulars.

I. The JUDGMENT at August Term, 1944.

Two questions were specifically decided at the August Term, 1944, Cabarrus Superior Court: first, that the annuities to the first annuitants vested or accrued at the date of the death of the testatrix, and became payable from and after that date; and, second, that the market value of the principal of each of the first trust shares is to be determined as of the date of its setting aside by the Trustees, to wit, 16 September, 1941.

It is conceded on all sides that the trial court correctly decided the accrual date of the first annuities to be the date of the death of the testatrix, and that they became payable from and after that date. Indeed, such accords with the general current of authority on the subject. Anno. 70 A. L. E., 636. The following appears in the Eestatement of the Law of Trusts, page 692 :

“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.”

The case of Trust Co. v. Jones, 210 N. C., 339, 186 S. E., 335, is in support of this statement. The accrual date of the first annuities, then, may be taken as “fixed and determined” so far as the present action is concerned. See Kinney v. Uglow, 163 Ore., 539, 98 P. (2d), 1006.

In respect of tbe correctness of tbe second question decided at tbe August Term, 1944, i.e., tbat tbe market value of tbe principal of eacb of tbe first trust shares should be determined as of 16 September, 1941, tbe parties are in sharp disagreement. It is therefore brought up for review. Tbe answer involves tbe construction of several provisions of tbe will.

It is to tbe financial interest of tbe children of four of tbe first annuitants to have tbe market value of tbe principal of their trust shares determined at the accrual date, to wit, tbe date of tbe death of tbe testatrix. Tbe children of Laura Cannon Mattes, however, being adopted children, are excluded by the will, and it is to her pecuniary interest to have tbe market value of tbe principal of her trust share determined as of 16 September, 1941. It is agreed tbat tbe market value of tbe principal of tbe first trust shares should be determined at one or tbe other of these dates.

Tbe solution of tbe problem is to be found in the expressed purpose of tbe testatrix. Tbe intention of tbe testatrix is her will. This intention is to be' gathered from tbe general purpose of tbe will and tbe significance of tbe various expressions, enlarged or restricted according to their real intent. In interpreting tbe different provisions of a will, tbe courts are not confined to tbe literal meaning of a single phrase. A thing within the intention is regarded within tbe will though not within tbe letter. A thing within tbe letter is not within tbe will if not also within tbe intention. Bank v. Corl, ante, 96; 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. In ascertaining such intention, tbe will in its entirety must be brought into focus, and it is competent to consider tbe conditions surrounding the testatrix, bow she was circumstanced, her relationship to tbe objects of her bounty, so as nearly as possible to get her viewpoint at tbe time tbe will was executed. HeHyer v. Bulluck, 210 N. C., 321, 186 S. E., 356; Herring v. Williams, 153 N. C., 231, 69 S. E., 140.

It follows, of course, tbat where tbe intention of tbe maker of tbe will is clearly and consistently expressed, there is no occasion for any interpretation. McCallum v. McCallum, 167 N. C., 310, 83 S. E., 250. Tbe will is to be given effect according to its obvious intent. Brock v. Porter, 220 N. C., 28, 16 S. E. (2d), 410. Construction belongs only to tbe domain of ambiguity, or where different impressions are reasonably made on different minds. Walton v. Melton, 184 Va., 111, 34 S. E. (2d), 129. Tbe writing would not be doubtful if it bad tbe same meaning to everyone. Krites v. Plott, 222 N. C., 679, 24 S. E. (2d), 531.

It is tbe function of construction to ascertain tbe will of tbe testatrix. This accomplished, then ’follows tbe mandate: “Thy will be done.” McCallum v. McCallum, supra.

At the time of the execution of the second codicil, the testatrix had large properties in her own name, and she also had a considerable estate held by a trust company in New York under a revocable trust agreement. She amended this trust agreement and executed the second codicil to her will at the same time, making similar dispositive changes in both. The New York court held that under the amendment to this trust agreement the first trust shares vested, both in interest and in title, at the date of the death of the donor and that the principal amount of each of the respective shares should be valued as of that date, 4 May, 1938. See Cannon v. Cannon, supra.

The controlling provisions in the Fifth Item of the second codicil are these:

“All the rest ... of my property ... I give ... to my Trustees ... in trust ... to hold, manage, control, invest and reinvest the same and to divide the principal thereof into five equal shares and to dispose of each such equal share as follows :

“(A) My Trustees shall set apart one (1) such equal share and, in case my son Eugene T. Cannon shall survive me, shall pay over . . . from the said equal share, an annuity of four and one-half per centum, etc.

“Upon the death of my said son, Eugene T. Cannon, or in case he shall die before me then upon my death, the said equal share shall be divided into four (4) equal parts,” etc.

Exactly similar expressions are repeated in clauses “(B),” “(C)” and “(D),” the only differences being in the names of the beneficiaries and the number of second divisions.

Then comes the instruction in paragraph “(G),” to the effect that “whenever” an annuity of four and one-half per centum of a share or part of the trust estate “is granted” under the terms of the will, the said percentage shall be that percentage of the principal of the share or part “set aside in trust, computed at the market value thereof at the date of the setting aside of said share or part.”

It will be noted that the time at which the testatrix “granted” the annuities to each of the first five annuitants was at the date of her death. She says in respect of each of these that in case he or she “shall survive me,” my trustees shall pay over to him or her “from the said equal share” an annuity for life of four and one-half per centum. Hence it was contemplated that the principal of the share should be “set aside in trust” upon the vesting in right of the annuity, for it is provided that the “said annuity shall be paid,” not out of the general residuary estate, but “out of the income of the said share of the trust estate to the extent that the income shall suffice therefor, and in case there shall be any deficiency in income in any year, said deficiency shall be made up out of the principal.”

Similar provisions are made in respect of the second beneficiaries. The testatrix says that “upon the death” of my said son or daughter as the case may be, or in case he or she shall die before me, “then upon my death,” the said equal share shall be divided into equal parts, and a lifetime annuity is given to each of her named second beneficiaries, to be paid, not out of the general residuary estate, but “out of the income of the said part of the trust estate to the extent that the income shall suffice therefor. In case there shall be any deficiency in income in any year, said deficiency shall be made up out of the principal.”

It is a cardinal principle in the interpretation of wills, that “the predominant and controlling purpose of the testator must prevail, when ascertained from the general provisions of the will, over particular and apparently inconsistent expressions to which, unexplained, a technical force is given.” Raines v. Osborne, 184 N. C., 599, 114 S. E., 849. The central consideration is the general purpose of the will. Holland v. Smith, 224 N. C., 255, 29 S. E. (2d), 888. The object of all construction is to arrive at the intent and purpose as expressed in the writing, looking at the instrument from its four corners, and to effectuate this intent and purpose without excessive regard for minor inaccuracies or inconsistencies. Krites v. Plott, supra. These latter variations are to be reconciled, if reasonably accomplishable within the limits which the law prescribes, otherwise they must yield to the general purpose as expressed in the writing. Carroll v. Herring, 180 N. C., 369, 104 S. E., 892.

If we look at the second codicil from the viewpoint of the testatrix at the time of its execution, as we are enjoined to do, the above construction harmonizes all of its provisions, and leaves no possible clashes or contradictions which might thereafter arise. Such a result is supposed to have been in the mind of the testatrix when the codicil was published. Her dominant purpose, as repeatedly expressed in the will, also lends support to the construction. Raines v. Osborne, supra. We think the testatrix intended that the first annuities granted under the provisions of her will should vest in right as of the date of her death, and that the principal of each first equal share should be “set aside in trust” and valued as of the same date.

In support of the 16 September, 1941, date for the determination of the first trust shares, it is suggested that the division is to be made by the Trustees in their capacity as such, and that this could not be done prior to the time the residuary estate came into their hands. To meet this position, it is pointed out that the Trustees were also instructed to pay an annuity of four and one-half per centum to each of the first five annuitants, “from tbe said equal share,” paying it first out of the income from said share, and in case of any deficiency in income, then out of the principal of the share, it being the intention of the testatrix that the annuity should be paid “without reference to the existence or absence of income” arising from the individual share. The testatrix clearly intended that each of these annuities should be paid from and after the date of her death, as the only condition annexed thereto was that the annuitant “shall survive me.” By the same token that the Trustees were instructed to make payments beginning with a date prior to the time the residuary estate came into their hands, they were likewise directed to compute the value of the trust shares as of the same date, i.e., when the shares were to be “set aside in trust” under the terms of the will and the annuities paid therefrom, which, as stated above, was the date of the death of the testatrix. The dominant purpose of the will and the rule of harmonization are in conformity with this conclusion. Allen v. Cameron, 181 N. C., 120, 106 S. E., 484; Ralston v, Telfair, 17 N. C., 255.

II. The Valuation of the Trust Shares by the CouRt :

Prior to the order of reference, for ascertainment of the value of the first trust shares, two of the initial beneficiaries, Margaret Cannon Howell and Adelaide Cannon Blair, and their children who are second beneficiaries, demurred to the pleadings in the cause on the ground that no facts are stated therein which would authorize the court to fix the value of the trust shares for the purpose of computing the annuities payable to the first beneficiaries. The demurrers were overruled, and exceptions were duly entered.

It is the contention of the demurrants that the division of the principal of the residuary estate into five .equal shares, as well as the valuation of such shares, is committed in the first instance to the Trustees, and that in the absence of an allegation of a refusal to act, abuse of discretion, or bad faith, the court is without authority in the premises. This position would seem to be sound. Carter v. Young, 193 N. C., 678, 137 S. E., 875. It is true the Trustees have asked the court to fix the value of the trust shares, as well as the time for their valuation, and some of the beneficiaries have joined in this request. But the testatrix has reposed this confidence in her Trustees. She knew their respective interests in the matter and deliberately selected them for the purpose. Equity will instruct the Trustees how to proceed, but there is no occasion for the court to administer the trust. Finley v. Finley, 201 N. C., 1, 158 S. E., 549; Reid v. Alexander, 170 N. C., 303, 87 S. E., 125. The demurrers were well interposed.

III. The JUDGMENT at the April Term, 1945 :

The disposition heretofore made of the exceptions addressed to the judgment entered at the August Term, 1944, renders it unnecessary to consider the exceptions addressed to the judgment entered at the April Term, 1945, further than to say this judgment will be Amcated, the referee’s'report stricken out, and the cause remanded for further proceedings and directions to the Trustees as may be appropriate in the light of the determinations here made.

Error and remanded.