Wachovia Bank & Trust Co. v. Green

78 S.E.2d 174 (1953) 238 N.C. 339

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

No. 102.

Supreme Court of North Carolina.

October 14, 1953.

Wright & Shuford, Asheville, for petitioner.

Williams & Williams, Asheville, for appellants Ottis Green, Jr., and Virginia F. Green, guardian ad litem of Laura Adelaide Green, Mary Virginia Green and Michael Joseph Green.

Hudgins & Adams, Greensboro, and Ward & Bennett, Asheville, for appellees Aileen Morel Johnston and John Devereaux Johnston, guardian ad litem for John Devereaux Johnston, Jr.

John C. Cheesborough, Asheville, attorney and guardian ad litem for all persons not now in esse.

DENNY, Justice.

The appellants present the following questions for our consideration: (1) In the interpretation of the testator's will, do the words "in the event any child or children shall hereafter be born to either my said niece or my said nephew" exclude the adopted children of Ottis Green, Jr. as a matter of law, or should the intent of the testator be ascertained through extrinsic evidence? (2) Under the facts and circumstances disclosed by this record, did the court err in declining to consider or interpret the residuary clause of the will with respect to the ultimate distribution of the net assets of the trusts?

It is axiomatic that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. Voncannon v. Hudson Belk Co., 236 N.C. 709, 73 S.E.2d 875; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279; Buffaloe v. Blalock, 232 N. C. 105, 59 S.E.2d 625; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. Ordinarily, this intent must be ascertained from a consideration of the will from its four corners, and effect given to such intent, unless contrary to some rule of law or at variance with public policy. Efird v. Efird, supra; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Heyer v. Bulluck, supra.

It is equally true that where the language in a will is ambiguous, or of doubtful meaning, the court should place itself as near as practicable in the position of the testator in order that the language used may be interpreted from his viewpoint as an aid in arriving at his intent. In such instances, the court may properly take into consideration the testator's situation, how he was circumstanced, his relation to the objects of his bounty, and what effect known forces may have had upon him at the time the will was executed. Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; Wachovia Bank & Trust Co. v. Board of National Missions, 226 N.C. 546, 39 S.E.2d 621; Heyer v. Bulluck, supra; Raines v. Osborne, 184 N.C. 599, 114 S.E. 849.

In the instant case, the testator executed his will on December 10, 1947 and provided for the establishment of two trusts. The trust created pursuant to the provisions contained in Item V of the will was created primarily for the benefit of certain named beneficiaries for life. Until the death of the last survivor of these life beneficiaries, the beneficiaries named in sub-paragraph (c) of section (4) of Item V of the will are to receive only what is left of the income from the trust, after paying the designated sums to the life beneficiaries. On the other hand, the trust established under Item X of the will is for the sole and exclusive benefit of the testator's niece Marion Green Johnston, his nephew Ottis Green, Jr., and the children of his niece Marion Green Johnston, viz.: Aileen Morel Johnston and John Devereaux Johnston, Jr., together with any other children that might be born, after the execution of the will, to either his niece Marion Green Johnston and his nephew Ottis Green, Jr. Furthermore, upon the death of the last survivor of the life beneficiaries under the trust created in Item V of the will, the trust is to terminate, and the corpus thereof is to become a part of the trust established in Item X of the will. The latter trust is to continue until the death of the last survivor of the testator's niece Marion Green Johnston and his nephew Ottis Green, Jr., at which time the net assets of the trust "shall be paid and delivered, share and share alike, to the children of Marion Green Johnston, and the children of Ottis Green, Jr., then surviving, the issue of any deceased child to receive, per stirpes, the share which their parent would have received, if living."

As to the first question presented by the appellants, we concur in the ruling of the court below. There is no ambiguity in the language of the will with respect to the beneficiaries of the trusts. It provides clearly and unequivocally that the beneficiaries of both trusts, exclusive of the sums to be paid to certain designated persons for life, shall be his niece Marion Green Johnston and his nephew Ottis Green, Jr., and Aileen Morel Johnston and John Devereaux Johnston, Jr., children of his niece, together with any child or children that may thereafter be born to either his niece Marion Green Johnston or his nephew Ottis Green, Jr. Moreover, he provided that in the event, during the life of the trust created under Item X of his will, any beneficiary thereunder, other than his niece Marion Green Johnston and his nephew Ottis Green, Jr., should die, leaving issue then surviving, such issue shall receive the income their parent would have received, if living.

The language of the testator's will in so far as it directs the distribution of the income from the respective trusts, except for the payment of the designated sums to the life beneficiaries, shows a clear intent to limit the beneficiaries to those of his blood. Therefore, the contention of the appellants that in the interpretation of this will we should give effect to our statutes governing the adoption of children, which provide that an adopted child may take by succession or inheritance from and through its adoptive parents on an equality with natural-born children, is without merit. Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632. The intent of a testator, if possible, must be ascertained from the language of his will and where the language clearly expresses his intention there is no occasion for interpretation. Cannon v. Cannon, supra; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888; McDaniel v. King, 90 N.C. 597.

As to the second question, we concede that the identity of the ultimate takers of the net assets of these trusts under the residuary clause of the will must await the call of the roll at the death of the last survivor of the testator's niece Marion Green Johnston and his nephew Ottis Green, Jr. However, as to whether the adopted children of Ottis Green, Jr. are beneficiaries within the meaning of the residuary clause of the will depends upon the interpretation given to the pertinent provisions thereof. It is purely a question of law, now determinable, and nothing except the death of all three of the adopted children of Ottis Green, Jr., prior to the death of the last survivor of the niece and nephew of the testator can obviate the necessity for its determination. This contingency, in our opinion, does not justify the postponement of a decision thereon until the death of the last survivor of the testator's niece and nephew. G.S. § 1-253; Williams v. Johnson, 228 N. C. 732, 47 S.E.2d 24. The adoptive parents are entitled to know whether or not these children will share in the distribution of the net assets of the trusts, if they are living when these trusts are terminated. Doubtless, plans for the future of the children will be governed somewhat by the answer to this question. The factual situation here is different from that in the case of Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578, and similar cases cited by the appellees. Therefore, the judgment of the court below is affirmed as to the first question raised on the appeal, but the cause is remanded for further hearing and decision as to whether or not the adopted children of Ottis Green, Jr., or any of them, will be eligible to answer the roll call, if living, at the death of the last survivor of the testator's niece Marion Green Johnston and his nephew Ottis Green, Jr. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888.

Error and remanded.