{
  "id": 8553719,
  "name": "PEOPLES BANK & TRUST COMPANY, EXECUTOR AND TRUSTEE UNDER THE WILL OF NINA P. BATTS, DECEASED v. ROSE ANN SHEARIN, W. M. BATTS, JAMES W. KEEL, JR., GUARDIAN AD LITEM FOR THE UNBORN ISSUE OF ROSE ANN SHEARIN, LILLIAN FAGALA, MARYANN NADER AND AGNES NAJAM",
  "name_abbreviation": "Peoples Bank & Trust Co. v. Shearin",
  "decision_date": "1975-11-05",
  "docket_number": "No. 757SC489",
  "first_page": "358",
  "last_page": "360",
  "citations": [
    {
      "type": "official",
      "cite": "27 N.C. App. 358"
    }
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  "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."
  },
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    {
      "cite": "155 S.E. 2d 293",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1967,
      "pin_cites": [
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          "page": "301"
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    {
      "cite": "270 N.C. 510",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8569380
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          "page": "519"
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    {
      "cite": "2 A.L.R. 2d 1383",
      "category": "reporters:specialty",
      "reporter": "A.L.R. 2d",
      "year": 1948,
      "opinion_index": 0
    },
    {
      "cite": "110 S.E. 2d 802",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1959,
      "opinion_index": 0
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    {
      "cite": "251 N.C. 146",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8623348
      ],
      "year": 1959,
      "opinion_index": 0,
      "case_paths": [
        "/nc/251/0146-01"
      ]
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    {
      "cite": "139 S.E. 2d 214",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1964,
      "opinion_index": 0
    },
    {
      "cite": "263 N.C. 189",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568539
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      "year": 1964,
      "opinion_index": 0,
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  "analysis": {
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    "char_count": 6092,
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  "last_updated": "2023-07-14T22:44:36.927205+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Parker concur."
    ],
    "parties": [
      "PEOPLES BANK & TRUST COMPANY, EXECUTOR AND TRUSTEE UNDER THE WILL OF NINA P. BATTS, DECEASED v. ROSE ANN SHEARIN, W. M. BATTS, JAMES W. KEEL, JR., GUARDIAN AD LITEM FOR THE UNBORN ISSUE OF ROSE ANN SHEARIN, LILLIAN FAGALA, MARYANN NADER AND AGNES NAJAM"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nThe defendant groups his assignments of error under one broad question for consideration on appeal: Did the trial court err in holding that the testatrix intended that the trustee under the will involved should not consider the separate assets but only the income of the lifetime beneficiary before making disbursements to him?\nDecisions are consistent in holding that the intention of the settlor must govern this type of will interpretation. Bank v. Broyhill, 263 N.C. 189, 139 S.E. 2d 214 (1964) ; Callaham v. Newsom, 251 N.C. 146, 110 S.E. 2d 802 (1959). Defendant asserts that the instrument implies that the testatrix wanted the beneficiary to be provided for if he could not provide for himself. The first rule of construction that he proposes is that a trustee is required to consider the beneficiary\u2019s other means unless an affirmative contrary intention is revealed by the will. The second rule of construction advanced is that the word \u201cnecessary\u201d implies a necessity to carry out the purpose of the trust regardless of the beneficiary\u2019s other means while the word \u201cneeds\u201d implies that only the beneficiary\u2019s actual needs are to be provided for by the trust, if the beneficiary cannot provide them for himself. Annot., 2 A.L.R. 2d 1383 (1948).\nThe trial judge relied on language in the will itself to garner the testatrix\u2019s intention. Specifically, the instruction that the trustee be guided \u201cby practical considerations such as whether my husband is still working\u201d indicated an intent that Mr. Batts\u2019 income be used for his support before trust assets were invaded.\nKuykendall v. Proctor, 270 N.C. 510, 519, 155 S.E. 2d 293, 301 (1967), quotes Scott on Trusts, 2d Ed., \u00a7 128.4, as follows:\n\u201c 7t is a question of interpretation whether the beneficiary is entitled to support out of the fund even though he has other resources. Where the trustee is directed to pay to the beneficiary or to apply for him so much as is necessary for his maintenance and support, the inference is that the settlor intended that he should receive his support from the trust estate, even though he might have other resources.\u2019 \u201d\nIn Kuykendall, the trust indenture provided that the trustee was to use the rents and profits \u201cor so much thereof as may be necessary\u201d to keep the beneficiary in comfort. The court held this language was mandatory, was a limit only upon the amount required to accomplish the purpose of the trust, and did not mean that no funds were to be used for this purpose so long as the beneficiary had other properties.\nSub judice, the trust provides for needs, protection and sup: port of the beneficiary, but in doing so the trustee was directed to be \u201cguided by practical considerations such as whether my husband is still working, his health and other factors.\u201d The clear implication in this language is that the husband\u2019s income was to be considered in accomplishing the trust purpose, but there is no implication that the \u201cconsiderations\u201d extended to his separate estate. In our opinion the trial judge accurately interpreted the pertinent trust provisions of the will.\nAffirmed.\nJudges Britt and Parker concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Spruill, Trotter & Lane by F. P. Spruill, Jr., for plaintiff appellee.",
      "George Paul Duffy, Jr., for defendant appellant, James W. Keel, Jr., Guardian Ad Litem for the Unborn Issue of Rose Ann Shearin."
    ],
    "corrections": "",
    "head_matter": "PEOPLES BANK & TRUST COMPANY, EXECUTOR AND TRUSTEE UNDER THE WILL OF NINA P. BATTS, DECEASED v. ROSE ANN SHEARIN, W. M. BATTS, JAMES W. KEEL, JR., GUARDIAN AD LITEM FOR THE UNBORN ISSUE OF ROSE ANN SHEARIN, LILLIAN FAGALA, MARYANN NADER AND AGNES NAJAM\nNo. 757SC489\n(Filed 5 November 1975)\nTrusts \u00a7 5\u2014 husband as beneficiary \u2014 consideration of husband\u2019s income and separate estate before disbursing funds\nWhere a trust provided for the needs, protection, and support of testatrix\u2019 husband, but in doing so the trustee was directed to be \u201cguided by practical considerations such as whether my husband is still working, his health and other factors,\u201d the clear implication was that the husband\u2019s income was to be considered in accomplishing the trust purpose, but there was no implication that the \u201cconsiderations\u201d extended to his separate estate.\nAppeal by defendant, James W. Keel, Jr., Guardian Ad Litem for the Unborn Children of Rose Ann Shearin, from Small, Judge. Judgment entered 17 March 1975, Superior Court, Nash County. Heard in the Court of Appeals 24 September 1975.\nThe controversy in this case centers around trust provisions of the will of Nina Batts, who died in 1973. Plaintiff qualified as executor and trustee. Plaintiff seeks a declaratory judgment as to its fiduciary duties under Article Eight of the Will which states:\n\u201cThe Trustee is authorized and directed to use both principal and income as may be needed for the benefit of my husband during his lifetime, and this includes luxuries as well as necessities. The Trustee shall be guided in the administration of the trust by practical considerations such as whether my husband is still working, his health and other factors. I wish him properly protected and supported, and I request the Trustee to inform itself as to his needs and to make provision for them whether or not he so requests, with specific authority to pay bills for his support, medical bills or expense of nursing home.\u201d\nPlaintiff specifically requests advice as to whether in providing trust benefits to W. M. Batts, husband of testatrix, it should consider the extent and availability of Batts\u2019 own separate property.\nThe will also stated that the remainder of the trust should go to Rose Ann Shearin, Mrs. Batts\u2019 daughter, or if she be dead, then to her issue, or if no issue, then in equal shares to three other named beneficiaries.\nA guardian ad litem was appointed for the unborn contingent beneficiaries, and an answer was filed on their behalf. A judgment was entered which concluded that although the testatrix did not intend all of her husband\u2019s assets to be exhausted, she did intend that his income be expended before he received trust benefits. From this judgment, the guardian ad litem appealed.\nSpruill, Trotter & Lane by F. P. Spruill, Jr., for plaintiff appellee.\nGeorge Paul Duffy, Jr., for defendant appellant, James W. Keel, Jr., Guardian Ad Litem for the Unborn Issue of Rose Ann Shearin."
  },
  "file_name": "0358-01",
  "first_page_order": 386,
  "last_page_order": 388
}