Wachovia Bank & Trust Co. v. Waddell

65 S.E.2d 317 (1951) 234 N.C. 34

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

No. 105.

Supreme Court of North Carolina.

June 7, 1951.

Francis J. Heazel, Asheville, for plaintiff appellant.

Kingsland Van Winkle, Asheville, guardian ad litem for Thornton Jordan and all the bodily heirs of Francis C. Jordan and Mary Jordan not in esse.

Tench C. Coxe, Jr., and Adams & Adams, Asheville, for Ralph E. Lee and Stephen R. Adams.

John Y. Jordan, Jr., Asheville, for Mary W. Jordan, Francis C. Jordan, Mary Jordan, Janet Jordan, and Betty Jordan Jacobs and husband, R. L. Jacobs.

Woodson & Woodson, Salisbury, for Vaughn A. Waddell.

Andrew Joyner, Jr., Greensboro, for Kate Waddell.

BARNHILL, Justice.

The judgment of the court below attempts to preclude the infant grandson of Francis C. Jordan, without notice and without a hearing. If, in fact, said infant "does not now and cannot ever have" any interest in the trust property, no harm is done by the decree. But such is not the case. The only disposition of the trust estate, at the termination of the trust, is contained in the direction that the property be then divided among the bodily heirs of testator's nephew and niece, then surviving. To ascertain who are the ultimate takers, the roll must be called as of the day of the death of the last surviving life beneficiary. G.S. § 41-4; Turpin v. Jarrett, 226 N.C. 135, 37 S.E.2d 124; Conrad v. Goss, 227 N.C. 470, 42 S.E.2d 609; House v. House, 231 N.C. 218, 56 S.E.2d 695. Title vests in the ultimate takers at that time. Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713.

The term "bodily heirs", when used as descriptio personarum, as here, means issue and embraces children, grandchildren, and other lineal descendants. Matthews v. Matthews, 214 N.C. 204, 198 S.E. 663; Turpin v. Jarrett, supra, and cases cited.

So then, the Jacobs infant is one of those who may take under the limitation over. Indeed, it is in the realm of possibility that he may be the one and only person capable of answering when the roll is called. Any decree entered herein at this time is not binding on him. Therefore, the title of the widow to the property to be conveyed to her under the agreement would remain in doubt during the continuance of the trust and eventually might be defeated by the superior right of the ultimate taker.

If, at the time of the division, the Jacobs infant is entitled to answer the roll call, he will take his share of the estate in his own right as a devisee under the will and not by representation. No living person in his class is a party to this proceeding. Therefore, we may not hold that he is bound by the decree herein under the doctrine of class representation. He must be made a party defendant and given an opportunity to be heard through a duly appointed guardian ad litem. To that end the cause must be remanded.

There is, however, one question posed which we may as well consider and dispose of at this time. In its petition the plaintiff seeks a judicial answer to this question: "(f) Shall plaintiff as Executor report for Federal Estate of (sic) North Carolina Inheritance taxes the United States Treasury Bonds and the annuity insurance policies referred to in paragraph 22 above?"

The bonds referred to are U. S. Treasury Series E, F, and G Bonds and the annuity policies are annuity policies in which the widow is named as beneficiary entitled to the amounts payable thereunder after the death of her husband. The court below directed:

"L. That plaintiff shall report as a part of the taxable estate of Duncan Cameron Waddell, Jr., deceased, for the purpose of determining the amount of Federal Estate Tax and North Carolina Inheritance Taxes payable, the value of United States Treasury bonds and annuity insurance policies referred to and described in Paragraph 20 (22) of the complaint, the value of the 160 shares of stock of Waddell, Sluder, Adams & Company, given to defendant Stephen R. Adams as set forth in Paragraph J, hereinabove of this judgment, and the value of all of the real and personal property included in the estate of said Duncan Cameron Waddell, Jr."

The Collector of Internal Revenue for the Federal government and the North Carolina Commissioner of Revenue for the State are the officials who must decide what assets are to be reported for Federal Estate Tax and State Inheritance Tax respectively, subject to the right of review provided by law. Neither is a party to this proceeding and therefore neither is bound by the decree herein. If the plaintiff is not satisfied with the rulings of the proper taxing authorities, it may, after exhausting all other statutory remedies, appeal to the court for relief. But the court, in the meantime, will not act as its advisory counsel in respect of these questions which must, in the first instance, be presented to and decided by governmental administrative agents. The order entered, in this respect, was premature.

The cause must be remanded for further proceedings accordant with this opinion.

Error and remanded.