{ "id": 8521186, "name": "WACHOVIA BANK & TRUST COMPANY, Trustee Under the Last Will and Testament of George G. Johnson v. CHARLES H. LIVENGOOD, JR., NORMAN B. LIVENGOOD, D. JOHNSON LIVENGOOD, BETTY J. CRISP, J. ERIC JOHNSON, JR. and BETTY BUGG CROUCH", "name_abbreviation": "Wachovia Bank & Trust Co. v. Livengood", "decision_date": "1981-10-06", "docket_number": "No. 8114SC161", "first_page": "198", "last_page": "202", "citations": [ { "type": "official", "cite": "54 N.C. App. 198" } ], "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": "48 N.E. 277", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1897, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "169 Mass. 523", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 469512 ], "year": 1897, "pin_cites": [ { "page": "524-25" } ], "opinion_index": 0, "case_paths": [ "/mass/169/0523-01" ] }, { "cite": "146 A.2d 14", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 3, "year": 1958, "pin_cites": [ { "page": "16" }, { "page": "16" } ], "opinion_index": 0 }, { "cite": "218 Md. 177", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1955212 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/md/218/0177-01" ] }, { "cite": "13 S.E. 2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "219 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621469 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/219/0151-01" ] }, { "cite": "295 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563683, 8563718, 8563572, 8563607, 8563641 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0465-04", "/nc/295/0465-05", "/nc/295/0465-01", "/nc/295/0465-02", "/nc/295/0465-03" ] }, { "cite": "243 S.E. 2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "179", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551201 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0087-01" ] }, { "cite": "135 S.E. 332", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "opinion_index": 0 }, { "cite": "192 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624470 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/nc/192/0505-01" ] }, { "cite": "18 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "220 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11308816 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/220/0714-01" ] }, { "cite": "128 S.E. 2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "760", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "258 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561244 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0482-01" ] }, { "cite": "156 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563629 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0292-01" ] } ], "analysis": { "cardinality": 543, "char_count": 10001, "ocr_confidence": 0.767, "pagerank": { "raw": 2.208705353199233e-07, "percentile": 0.7761004599109832 }, "sha256": "6f73bd77bd20334f94b65b9feb5c1ce4e9678c0597f3d0d54d144bc0b5c8bb51", "simhash": "1:11e0654bb4a56e1f", "word_count": 1701 }, "last_updated": "2023-07-14T17:12:28.716896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and BECTON. concur." ], "parties": [ "WACHOVIA BANK & TRUST COMPANY, Trustee Under the Last Will and Testament of George G. Johnson v. CHARLES H. LIVENGOOD, JR., NORMAN B. LIVENGOOD, D. JOHNSON LIVENGOOD, BETTY J. CRISP, J. ERIC JOHNSON, JR. and BETTY BUGG CROUCH" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nItem Fourth of the last will and testament of George G. Johnson provides:\nAll of my other property, real, personal, and mixed, wherever the same may be situated, I give, devise and bequeath unto the Wachovia Bank and Trust Company, Durham, N.C., as Trustee, to be held, managed, and invested, reinvested, used and disposed of as follows:\n(1) The Trustee shall pay over the net income in equal shares to my sister [sic], Mary Johnson Livengood, Helen Johnson Bugg, and .my sister-in-law Helen Noell Johnson, or the survivors of them.\n(2) Upon the death of the last survivors of my sisters, Mary Johnson Livengood, and Helen Johnson Bugg, and my sister-in-law Helen Noell Johnson, this trust shall terminate and be paid over in equal shares to my nieces and Nephews per Stripes [sic].\nThe life tenants are now deceased. Mary Johnson Livengood left surviving her the defendants Charles H. Livengood, Jr., Norman B. Livengood, and D. Johnson Livengood, nephews of the testator. Betty Bugg Crouch is the daughter of Helen Johnson Bugg and is a niece of the testator. Helen Noell Johnson left surviving her a son and a daughter.\nIt is appellants\u2019 contention that paragraph 2 of Item Fourth of the will should be construed to require a per capita distribution of principal and accrued income from the trust. Each of the re-maindermen, the class of nephews and nieces, would receive a one-sixth share of the trust estate under this construction. Ap-pellee, Betty Bugg Crouch, argues for a per stirpes distribution, entitling her to a one-third share. Under this construction, appellants would be entitled to a one-ninth share each. Under either construction Helen Noell Johnson\u2019s two children would each receive a one-sixth share.\nThe parties have argued ably and vigorously, citing numerous North Carolina cases to support their respective positions. We begin with the proposition that if persons designated in a will stand in equal degrees of relationship to the testator, and the devise or bequest enures to the benefit of all of them, a division per capita is indicated, prima facie. Roberts v. Bank, 271 N.C. 292, 156 S.E. 2d 229 (1967); Trust Co. v. Bryant, 258 N.C. 482, 128 S.E. 2d 758 (1963); Tillman v. O\u2019Briant, 220 N.C. 714, 18 S.E. 2d 131 (1942); Burton v. Cahill, 192 N.C. 505, 135 S.E. 332 (1926); Dew v. Shockley, 36 N.C. App. 87, 243 S.E. 2d 177, cert. denied, 295 N.C. 465 (1978); Restatement (Second) of Property \u00a7 300 (1940). This presumption is based on the theory that equality is intended unless language or circumstances indicate a contrary intent. Supporting a per capita construction in the present case are (1) that the trust assets are to be distributed to a class of nephews and nieces identically related to the testator, and (2) that the assets are \u201cto be paid over in equal shares.\u201d It appears, however, that the testator has manifested a contrary intent, rebutting the per capita presumption by the addition of \u201cper stirpes\u201d language.\nAppellants urge us to consider and adopt the reasoning in a line of cases which hold that the per stirpes language merely regulates the distribution of the gift, substituting on a representative basis children of a nephew or niece who died prior to distribution. Roberts, supra; Trust Co. v. Bryant, supra; Walsh v. Friedman, 219 N.C. 151, 13 S.E. 2d 250 (1941); Dew, supra. Where the courts have adopted this reasoning, however, there has been language in the will to suggest that the testator intended to preserve the first taker\u2019s share by providing for substituted gifts. We are thus left with no North Carolina case which speaks directly to the perplexing ambiguity raised in paragraph 2, Item Fourth, of George G. Johnson\u2019s last will.\nWe find most persuasive the opinion in Cole v. Bailey, 218 Md. 177, 146 A.2d 14 (1958), which was decided on strikingly similar facts. The testator in Cole established a trust, income from which was to be paid to the testator\u2019s wife for life and at her death the principal and accumulated income was to be divided equally between his nephews and nieces living at the death of the wife, \u201cshare and share alike per representation.\u201d The court first concluded that the phrase \u201cper representation\u201d was not meaningless; nor could it be treated as surplusage. Within the clear meaning of the term was a direction that the nephews and nieces were to take not as individuals but as representatives of their parents, that is, on a \u201cper stirpes\u201d basis.\nAs in the present case, the will in Cole was silent with respect to providing for substitutional gifts. This is an important fact which distinguishes these two cases from those North Carolina cases upon which appellants would have us rely. Determining first that the \u201cper stirpes\u201d or \u201cper representation\u201d language was not applicable to substitutional gifts, the Cole court found that the language could only \u201cdenote the division of the gift among the primary legatees who are also the only legatees designed by testator to participate in his bounty.\u201d Id. at 181, 146 A.2d at 16. Thus a \u201cper stirpes\u201d construction was indicated.\nThe Maryland court next answered appellants\u2019 contention that the Cole nephews and nieces were the first takers and therefore they could not take in substitution from an ancestor. Noting that because only the nephews and nieces alive at the time of distribution could take under his will, and \u201cthe words \u2018per representation\u2019 therefore could not conceivably apply to anyone below the inheritance line of nephew and niece,\u201d the court found no reason why \u201cin the construction of a gift per stirpes the stocks should be found among takers and not among their ancestors.\u201d Id. at 182, 146 A.2d at 16.\nWe find the per stirpes construction even more compelling in the present case in that testator\u2019s sisters arid his sister-in-law, parents of the class of nephews and nieces, did receive a life interest in the income of the trust. \u201c[I]f the members of the class are of two or more families and the parent of each of these families is given a prior life interest in an equal share in the subject matter of the class gift, this fact tends to establish that those class members who are the children of one life tenant are to take only that share in which the parent life tenant had his interest.\u201d Restatement (Second) of Property \u00a7 301, comment j at 1649-50 (1941).\nFinally, we quote from Siders v. Siders, 169 Mass. 523, 524-25, 48 N.E. 277, 277 (1897), a case cited in Cole:\nBut for the words \u201cby right of representation,\u201d there could be no doubt that each nephew and niece would be entitled to an equal share. But for the words \u201cin equal shares,\u201d there could be no doubt that they would take per stirpes. The difficulty arises from the use of the two expressions in juxtaposition. Not much aid is derived from a perusal of the other parts of the will. ... We have a difficulty in giving any adequate meaning to the words \u201cby right of representation,\u201d except upon the theory of a distribution per stirpes. These words, though technical, are not obscure; and most men of ordinary intelligence, who have occasion to dispose of their property by will, and who use the words, may be supposed to know their meaning.\nBased on the foregoing, we affirm the decision of the trial court which held that the trust assets were to be distributed to testator\u2019s nephews and nieces on a per stirpes basis.\nAffirmed.\nJudges MARTIN (Robert M.) and BECTON. concur.\n. In Trust Co. v. Bryant, the will provided for a life estate in trust income to testator\u2019s wife and at her death \u201cto convey and transfer the entire principal sum ... to my nephews and nieces, the child or children of any deceased nephew and niece to receive the share the parent would have taken, the said distribution to be per stirpes and not per capita.\" 258 N.C. at 483, 128 S.E. 2d at 760 (emphasis added).\nIn Dew v. Shockley, testator devised \u201call my property of every kind ... to my two brothers and three sisters, to have and to hold the same for and during the term of their natural lives with remainder in fee to their children, in equal shares, the children of any deceased child to take the share the parent, if living, would take.\u201d 36 N.C. App. at 88, 243 S.E. 2d at 179 (emphasis added).", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Powe, Porter & Alphin, by E. K. Powe and Eugene F. Dauckert, Jr., for defendant appellants.", "Marshall, Williams, Gorham & Brawley, by Daniel Lee Brawley and A: Dumay Gorham, Jr., for defendant appellee." ], "corrections": "", "head_matter": "WACHOVIA BANK & TRUST COMPANY, Trustee Under the Last Will and Testament of George G. Johnson v. CHARLES H. LIVENGOOD, JR., NORMAN B. LIVENGOOD, D. JOHNSON LIVENGOOD, BETTY J. CRISP, J. ERIC JOHNSON, JR. and BETTY BUGG CROUCH\nNo. 8114SC161\n(Filed 6 October 1981)\nWills \u00a7 44\u2014 trust corpus \u2014per capita or per stirpes distribution\nWhere testator\u2019s will provided that the net income of a trust should be paid in equal shares to his two sisters and his sister-in-law, or the survivors of them, and that at the death of the last survivor, the trust should terminate and be paid over \u201cin equal shares\u201d to his nieces and nephews \u201cper stirpes,\u201d the will required a per stirpes rather than a per capita distribution of the trust principal and accrued income to testator\u2019s nieces and nephews.\nAPPEAL by defendants Livengood from Brewer, Judge. Order entered 12 December 1980 in Superior Court, DURHAM County. Heard in the Court of Appeals 18 September 1981.\nThis case comes on appeal from an order granting summary judgment in favor of defendant Betty Bugg Crouch and denying summary judgment to defendants Charles Livengood, Jr., Norman B. Livengood, and D. Johnson Livengood. All defendants are nephews and nieces of George G. Johnson whose last will and testament is the subject of the present controversy.\nThe plaintiff, Wachovia Bank & Trust Company, N.A., Trustee under a testamentary trust created under George Johnson\u2019s will, brought an action for declaratory judgment, requesting construction of a provision of the trust respecting disposition at its termination.\nPowe, Porter & Alphin, by E. K. Powe and Eugene F. Dauckert, Jr., for defendant appellants.\nMarshall, Williams, Gorham & Brawley, by Daniel Lee Brawley and A: Dumay Gorham, Jr., for defendant appellee." }, "file_name": "0198-01", "first_page_order": 226, "last_page_order": 230 }