{ "id": 8554083, "name": "DAVID JACK GOLD, Executor of the Last Will and Testament of EDNA P. GOLD, Deceased, Plaintiff v. ELMER PRICE and wife, FLOY B. PRICE, IRENE P. WHITWORTH and husband, J. A. WHITWORTH, RUTH P. PALMER and husband, BEN C. PALMER, AGNES W. PEARSON and husband, FOLKE PEARSON, CECIL C. WEAVER and wife, ROSA C. WEAVER, HERBERT K. WEAVER and wife, BESSIE S. WEAVER, MAUDE W. MARGADONNA and husband, THOMAS A. MARGADONNA, CHARLES D. WEAVER, JR., and wife, MAXINE H. WEAVER, RONALD LEE WEAVER and wife, GLADYS B. WEAVER, SHEILA W. HAWKINS and husband, JOLLY C. H. HAWKINS, GEORGE B. WEAVER and wife, ELIZABETH WEAVER, NORENE P. HUNT, and husband, GRIER HUNT, and MATHEW PAT MAUNEY, BILLY J. JONES and E. B. PACKARD, Trustees of SANDY PLAINS BAPTIST CHURCH, Defendants", "name_abbreviation": "Gold v. Price", "decision_date": "1975-02-19", "docket_number": "No. 7427SC933", "first_page": "660", "last_page": "663", "citations": [ { "type": "official", "cite": "24 N.C. App. 660" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "80 S.E. 410", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "164 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656593 ], "year": 1913, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc/164/0113-01" ] }, { "cite": "173 A.L.R. 656", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1950, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "97 S.E. 2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623772 ], "year": 1957, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0053-01" ] }, { "cite": "94 S.E. 7", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "opinion_index": 0 }, { "cite": "174 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254641 ], "year": 1917, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc/174/0537-01" ] }, { "cite": "117 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626129 ], "year": 1960, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0515-01" ] }, { "cite": "161 S.E. 2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552266 ], "year": 1968, "pin_cites": [ { "page": "290-291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0287-01" ] } ], "analysis": { "cardinality": 487, "char_count": 7191, "ocr_confidence": 0.575, "pagerank": { "raw": 2.3155020435033016e-07, "percentile": 0.7889292001193892 }, "sha256": "1e08ad7b6c9386d480e30ff20c39ae8079d69ffe447b4777d8ece97d66977a63", "simhash": "1:919043e44c0e944a", "word_count": 1247 }, "last_updated": "2023-07-14T19:54:40.635509+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Hedrick concur." ], "parties": [ "DAVID JACK GOLD, Executor of the Last Will and Testament of EDNA P. GOLD, Deceased, Plaintiff v. ELMER PRICE and wife, FLOY B. PRICE, IRENE P. WHITWORTH and husband, J. A. WHITWORTH, RUTH P. PALMER and husband, BEN C. PALMER, AGNES W. PEARSON and husband, FOLKE PEARSON, CECIL C. WEAVER and wife, ROSA C. WEAVER, HERBERT K. WEAVER and wife, BESSIE S. WEAVER, MAUDE W. MARGADONNA and husband, THOMAS A. MARGADONNA, CHARLES D. WEAVER, JR., and wife, MAXINE H. WEAVER, RONALD LEE WEAVER and wife, GLADYS B. WEAVER, SHEILA W. HAWKINS and husband, JOLLY C. H. HAWKINS, GEORGE B. WEAVER and wife, ELIZABETH WEAVER, NORENE P. HUNT, and husband, GRIER HUNT, and MATHEW PAT MAUNEY, BILLY J. JONES and E. B. PACKARD, Trustees of SANDY PLAINS BAPTIST CHURCH, Defendants" ], "opinions": [ { "text": "MORRIS, Judge.\nIn their first assignment of error defendants contend the trial court erred in holding that testatrix did not create a trust for the maintenance of her grave and Tom Gold\u2019s grave. We find this assignment of error without merit for several reasons. First, as we pointed out in Starling v. Taylor, 1 N.C. App. 287, 290-291, 161 S.E. 2d 204 (1968), \u201c[i]t is well settled in this State that three circumstances must concur in order to constitute a valid trust: (1) sufficient words to raise a trust, (2) a definite subject or trust res, and (3) an ascertained object. [Citations omitted.]\u201d Here, testatrix did not provide any funds to maintain the graves. Consequently, the second element, necessary to create a trust, a definite subject or res, is missing. Second, even if a trust had been created, which we do not concede, it would be an honorary trust, rather than a charitable trust, since it would not benefit the public as a whole. Such a trust is not enforceable. It may be put into effect or ignored at the option of the person named trustee since he \u201chas only a power and not a duty to apply the property.\u201d Restatement of Trusts 2d, \u00a7 124, p. 264(1959).\nDefendants next contend that the trial court erred in concluding \u201cthat the Sandy Plains Baptist Church is the sole beneficiary under the terms of the will\u201d and that it was \u201cthe intent of the testatrix that the word \u2018moneys\u2019 is synonymous with the word \u2018funds\u2019 and is construed in its broadest sense and includes not only cash but real property as well.\u201d They maintain that in using the language \u201c[i]f any moneys left it will go to Sandy Plains Church\u201d, testatrix was not attempting to' and did not dispose of her real property;' that the real estate, therefore, passes to them, her heirs, under the rules of intestate succession.. (Emphasis supplied.) We find defendants\u2019argument persuasive.\nIt is well settled in this State that in construing wills \u201c [g] enerally, ordinary words are to be given their usual.\u2019 \u00e1nd ordinary meaning. ...\u201d Clark v. Connor, 253 N.C. 515, 521, 117 S.E. 2d 465 (1960). Moreover, there is a presumption that \u201cif words are used in one part of the will in a certain sense, the same meaning is to be given to them when repeated in other parts of the will, unless a contrary intent appears.\u201d Taylor v. Taylor, 174 N.C. 537, 539, 94 S.E. 7 (1917), cited in Anders v. Anderson, 246 N.C. 53, 57, 97 S.E. 2d 415 (1957).\nHere, testatrix possessed no special skills in drafting wills. She executed her holographic will using everyday words of conversation. Especially where, as here, testatrix earlier' used the word \u201cmoneys\u201d in its ordinary sense, we are of the opinion that the word cannot be construed to include her real.property. We find additional support for our holding in 173 A.L.R. 656, 662 (1950) where it is stated that \u201c[wjhile the word \u2018money\u2019 may be broad enough to include real estate, it will not be deemed to do so, unless the intention so to use it is clearly manifest on the face of the will'and put beyond all reasonable doubt. [Citation omitted.]\u201d In the case at bar we do not find language clearly manifesting an intention on the part of the testatrix to use the word \u201cmoneys\u201d to include her real property.\nFinally, we note that there is a long standing presumption against disinheritance. An \u201cheir should not be disinherited except by express devise or by one arising from necessary implication, by which the property is given to another, ...\u201d Dunn v. Hines, 164 N.C. 113, 117, 80 S.E. 410 (1913). For the foregoing reasons, defendants\u2019 assignment of error is sustained and the decision of the trial court is hereby reversed.\nReversed.\nJudges Parker and Hedrick concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Joseph M. Wright for plaintiff appellee, Executor of the Estate of Edna P. Gold, deceased.", "Reuben L. Elam for defendant appellant, Elmer Price.", "Hamrick, Mauney & Flowers, by Joe Mauney, for defendant appellee, Trustees of Sandy Plains Baptist Church." ], "corrections": "", "head_matter": "DAVID JACK GOLD, Executor of the Last Will and Testament of EDNA P. GOLD, Deceased, Plaintiff v. ELMER PRICE and wife, FLOY B. PRICE, IRENE P. WHITWORTH and husband, J. A. WHITWORTH, RUTH P. PALMER and husband, BEN C. PALMER, AGNES W. PEARSON and husband, FOLKE PEARSON, CECIL C. WEAVER and wife, ROSA C. WEAVER, HERBERT K. WEAVER and wife, BESSIE S. WEAVER, MAUDE W. MARGADONNA and husband, THOMAS A. MARGADONNA, CHARLES D. WEAVER, JR., and wife, MAXINE H. WEAVER, RONALD LEE WEAVER and wife, GLADYS B. WEAVER, SHEILA W. HAWKINS and husband, JOLLY C. H. HAWKINS, GEORGE B. WEAVER and wife, ELIZABETH WEAVER, NORENE P. HUNT, and husband, GRIER HUNT, and MATHEW PAT MAUNEY, BILLY J. JONES and E. B. PACKARD, Trustees of SANDY PLAINS BAPTIST CHURCH, Defendants\nNo. 7427SC933\n(Filed 19 February 1975)\n1. Trusts \u00a7 1\u2014 provision of will \u2014 failure to provide funds \u2014 trust not created \u2014 honorary trust\nProvision of a will directing the executor to \u201csee that Tom Gold and Edna P. Golds graves are kept decent\u201d did not create a trust for maintenance of the graves since testatrix did not provide any funds to maintain the graves; even if a trust were created, it would be an honorary trust which is unenforceable.\n2. Wills \u00a7 55\u2014 gift of \u201cmoneys\u201d \u2014 real estate not included\nProvision of a holographic will stating, \u201cIf any moneys left it will go to Sandy Plains Church\u201d did not dispose of testatrix\u2019 real property, since testatrix used the word \u201cmoneys\u201d in its ordinary sense in a previous portion of the will.\nAppeal by defendants Elmer Price and wife, Floy B. Price from Falls, Judge. Judgment entered 25 September 1974, in Superior Court, Cleveland County. Heard in the Court of Appeals 22 January 1975.\nThis action was brought under the Declaratory Judgment Act by David Jack Gold, Executor of the will of Edna P. Gold, against Elmer Price, the only surviving brother of the deceased, and his wife; the heirs at law and next of kin of decedent; and Sandy Plains Baptist Church, requesting the court to interpret the will of Edna P. Gold and to determine the rights of the parties with respect to ownership of decedent\u2019s property. When testatrix died, she owned some money, some furniture and the home where she lived. Her holographic will provided as follows t\n\u201c4-15 1970\n\u201cI Edna P. Gold being of sound mind and memory do make and declare this my last will and testament that my Executor hereinafter named shall give my body a decent burial and pay all my Funeral expenses with vault, and pay my just debts out of the First moneys also see that Tom Gold and Edna P. Golds graves are kept decent. If any moneys left it will go to Sandy Plains Church. Also my Furniture be sold to the high bidder.\nExecutor s/ David Jack Gold\nWitness s/ Marshall 0. Cline\nWitness s/ Ray Bridges\u201d\nFrom judgment holding that the \u201ctitle to real estate owned by the testatrix at the date of her death, together with the cash, after the payment of debts and funeral expenses, passes to Sandy Plains Baptist Church, Cleveland County, North Carolina,\u201d and that testatrix created no trust for the maintenance of her grave and Tom Gold\u2019s grave since she provided no funds to carry out such trust, defendants appealed. Additional facts necessary for decision are set forth in the opinion.\nJoseph M. Wright for plaintiff appellee, Executor of the Estate of Edna P. Gold, deceased.\nReuben L. Elam for defendant appellant, Elmer Price.\nHamrick, Mauney & Flowers, by Joe Mauney, for defendant appellee, Trustees of Sandy Plains Baptist Church." }, "file_name": "0660-01", "first_page_order": 688, "last_page_order": 691 }