Wachovia Bank & Trust Co. v. Waddell

75 S.E.2d 151 (1953) 237 N.C. 342

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

No. 101.

Supreme Court of North Carolina.

March 18, 1953.

Andrew Joyner, Jr., Greensboro, for defendant-appellant Kate Waddell.

Bernard, Parker & McGuire, Asheville, for plaintiff-appellee.

BARNHILL, Justice.

Whether this action was open for a motion for an account and settlement of testator's estate under G.S. § 28-165 is not presented for decision. There was no objection or exception to the procedure adopted by the court below and, in any event, the material questions at issue were presented by the appeal from the clerk.

The objections and exceptions of appellant to the final account of plaintiff executor before the clerk and in the court below challenge both the reasonableness of the amount of commissions allowed plaintiff and the basis upon which the commissions were allowed. These exceptions raise two material questions for the clerk, in the first instance, and the judge, on appeal, to decide, to wit: (1) What is the meaning of the word "receipts" as used in Item Sixteen of the will limiting the amount of commissions to be paid the executor, and (2) what amount should be paid to plaintiff in compensation for its services in settling the estate of the testator?

A testator may stipulate in his will the compensation to be paid the person appointed executor with power to settle his estate. When this is done the provisions of the will are binding on all interested parties, Lightner v. Boone, 221 N.C. 78, 19 S.E.2d 144. But an executor has no right to fix and determine the compensation to be received by him. In the absence of a provision in the will fixing the compensation of the executor, it is the prerogative of the clerk of the Superior Court, acting as probate judge, to make an allowance to an executor, by way of commissions, for services rendered in the settlement of the estate committed to his care, in no event, however, to exceed 5% of receipts and disbursements. And in determining the amount to be allowed, the clerk must "consider the time, responsibility, trouble and skill involved in the management of the estate." G.S. § 28-170; Grant v. Reese, 94 N.C. 720; Battery Park Bank v. Western Carolina Bank, 126 N.C. 531, 36 S.E. 39; In re Hege, 205 N.C. 625, 172 S.E. 345.

Here the will does not fix or purport to fix the compensation to be paid testator's executor as compensation for services in settling his estate. It merely fixes the maximum percentage on receipts and disbursements at 2½%. It was, therefore, the duty of the clerk to make an allowance to plaintiff for services rendered as executor, subject to the maximum limitation stipulated in the will rather than the maximum fixed by statute. G.S. § 28-170; Lightner v. Boone, supra.

But in performing this duty it was necessary for the clerk to consider, determine, and abide by the meaning of the word "receipts" as used by the testator in Item Sixteen of his will.

A will, as to its dispositive provisions, speaks as of the date of the death of the testator. But when the meaning of any part of a will is the subject of controversy, it is the prerogative of the court to construe the contested provision and declare the true meaning thereof. And in construing a will, or any part thereof, the discovery of the intent of the testator, as expressed in his will, is the dominant and controlling objective, for the intent of the testator, as so expressed, is his will. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578, and cases cited.

In ascertaining the intent of the testator, the will is to be considered in the light of the conditions and circumstances existing at the time the will was made. Scales v. Barrianger, 192 N.C. 94, 133 S.E. 410; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12.

"* * * the court should place itself as nearly as practicable in the position of the testator * * * at the time of the execution of the will." In re Will of Johnson, supra [233 N.C. 570, 65 S.E.2d 15]. And ordinarily, words used in a will are to be construed as having the ordinary, natural, and customary meaning given them at the time of their use, unless it clearly appears that they were used in some other sense. Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830; Citizens Nat. Bank v. Phillips, 235 N.C. 494, 70 S.E.2d 509; Sharpe v. Isley, 219 N.C. 753, 14 S.E.2d 814; In re Will of Johnson, supra. If words at the time of their use had a wellknown legal or technical meaning, they are to be so construed unless the will itself discloses that another meaning was intended. Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231; Henry v. A. C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693. See also 2 Schouler on Wills, Executors and Administrators, 6th ed., 984, 1094; 2 Page, Wills, Lifetime Ed., 815-16, 894, 898.

Usually, nothing else appearing, it is presumed that the judge found facts sufficient to support the judgment entered, but that rule has no application here, for it is apparent from an examination of the record before us that both the clerk and the judge allowed compensation to plaintiff upon the assumption the will fixes the rate of compensation and directs that 2½% be allowed on the total value of all bonds, stocks, cash, and other personal property received by the executor. The compensation allowed is so estimated "as per will." Thus they acted under an erroneous conception of the applicable law.

The appellant is entitled to have the clerk in good faith fix the compensation to be allowed plaintiff as provided in G.S. § 28-170. In so doing the clerk is limited to a maximum of 2½% of the total receipts and disbursements. In determining this question he must of necessity construe the meaning of the word "receipts" as used in the will. From his findings and conclusions any interested party may appeal. Battery Park Bank v. Western Carolina Bank, supra.

"Why doesn't this court perform this judicial function and be done with it? Simply because this court possesses no original jurisdiction in such matters. Its duty is to review the decisions of the superior courts of the State." Woodard v. Clark, supra [234 N.C. 215, 66 S.E.2d 892]. Furthermore, the allowance of commissions, by way of compensation, to an executor requires the exercise of judicial discretion and judgment by the clerk of the Superior Court. It is he who has original jurisdiction. If any interested party conceives that the allowance made by him is either inadequate or excessive, or is made under an erroneous conception of the law, he may appeal. Battery Park Bank v. Western Carolina Bank, supra.

For the reasons stated the judgment entered is vacated. The court below is directed to remand the appeal from the clerk to the end that he may allow plaintiff compensation for its services in accord with this opinion. In the meantime, this cause will remain on the docket for further proceedings after final judgment by the clerk fixing the compensation of plaintiff and approving its final account.

Error and remanded.

DEVIN, J., took no part in consideration or decision of this case.