{ "id": 8659303, "name": "SAVINGS BANK AND TRUST COMPANY, Guardian, et als. v. S. H. JOHNSON et als.", "name_abbreviation": "Savings Bank & Trust Co. v. Johnson", "decision_date": "1915-02-24", "docket_number": "", "first_page": "304", "last_page": "309", "citations": [ { "type": "official", "cite": "168 N.C. 304" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "164 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "165 N. C., 202", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "160 N. C., 487", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "133 N. C., 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656311 ], "opinion_index": 0, "case_paths": [ "/nc/133/0086-01" ] }, { "cite": "165 N. C., 161", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "152 N. C., 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271652 ], "opinion_index": 0, "case_paths": [ "/nc/152/0421-01" ] }, { "cite": "149 N. C., 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270072 ], "opinion_index": 0, "case_paths": [ "/nc/149/0208-01" ] } ], "analysis": { "cardinality": 575, "char_count": 13502, "ocr_confidence": 0.468, "pagerank": { "raw": 1.4637028795601114e-07, "percentile": 0.6578572727599177 }, "sha256": "31e2bdfc20d34c0b8b9e3553fafdbf7152a5e99a7f8971ba84ae7948d7d411f5", "simhash": "1:e45ee0202660ab1b", "word_count": 2399 }, "last_updated": "2023-07-14T21:05:21.378028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SAVINGS BANK AND TRUST COMPANY, Guardian, et als. v. S. H. JOHNSON et als." ], "opinions": [ { "text": "Allen, J.\nWe agree with his Honor that the words used in the eighth item of the will in connection with the appointment of the executors, that they are \u201cto have entire control thereof (the property) so long as may be necessary for the fulfillment of this will,\u201d do not create a trust.\nIt is true, no particular words are necessary for the creation of a trust, but the intention to do so must be clear and manifest (Haywood v. Wachovia Co., 149 N. C., 208; Haywood v. Wright, 152 N. C., 421), and in determining the intention of -the testator the entire will must be considered, and not separate-parts of it. Taylor v. Brown, 165 N. C., 161.\n\"When so considered, we not only find no language in item 8 importing a trust, but when we look at the other parts of the will we nowhere find any trust declared.\nThe control of the property is given to the executors, not to trustees, and for the fulfillment of the will and not to execute a trust and no power or authority is conferred that did not exist under the law, as they had the right, as executors, to-have control of the property \u201cso long as may be necessary for the fulfillment of the will.\u201d\nAgain in the same item the executors are appointed guardians of the minor children, which would be unnecessary if they were trustees, and upon an examination of the whole will the intention is clear that the testator contemplated a division of his property now, and another and final division upon the death of a child leaving no children, which would be in conflict with the position that the executors are to hold and control the property as trustees.\nIt also appears from the will that the wife.and children are the objects of the testator\u2019s bounty, and he declares his intention that they shall share equally in real and personal property. In item 2 he gives the wife his home place for life, and after giving away certain specific amounts and making a devise of a tract of land, he provides in item 7 that his wife and children shall share equally in real and personal property.\nThis devise to the wife is absolute, because the language in item 7, \u201cif either die without children,\u201d does not refer to the wife, but to the children ; and if absolute, it is inconsistent with the position that the whole property shall be held by trustees; and the part of item 8 relied on to create a trust applies with equal force to the property given to the wife as to that given to the children.\nIf, however, it should be held that the language is sufficient to establish a trust, it would now be a passive and not an active trust, because it could only continue \u201cso long as may be necessary for the fulfillment\u201d of the will, and all the duties under the will have been performed except the distribution of the property, and if passive, the devisees and legatees would be entitled to the possession and use of the property. Perkins v. Brinkley, 133 N. C., 86; Lummus v. Davidson, 160 N. C., 487.\nThe ruling upon the other question involved in the appeal is, in our opinion, erroneous. \u25a0\u25a0\nNo language can be found in the will which limits the estate and interest given to the wife and children except the words in the seventh item, \u201cif either die without children,\u201d and it is clear these do not refer to the wife, because at the time of making the will she had five living children, and it is improbable that the testator contemplated the death of all the children before the death of the wife, and in the contingency named \"their property is to be equally divided between their brothers and sisters.\u201d\nIt follows, therefore, that the interest of the wife is absolute, and that she is now entitled to the property devised and bequeathed to her.\nThese provisions are in the item of the will which declares, \u201cMy wife and children shall share equally in both real and personal property,\u201d and this principle of equality which pervades the whole will would be destroyed if the wife can take now and the right of the children is postponed.\nThe use of the language in this item, \u201cthe division not to be final till my youngest child, Yirginia, is 21 years,\u201d also indicates a purpose to have a division before that time, and is without meaning unless interpreted to give the right to a division of the property among the children now, but if a child dies without leaving children, that there shall be another and final division.\nIt follows, therefore, that the children take the whole interest in the property, which may be defeated upon dying without children, or, as it is usually termed, a determinable fee, which passes a present interest, subject to be defeated, however, upon the happening of the contingency (Rees v. Williams, 165 N. C., 202) ; and following the principle which favors the early vesting of estates (Dunn v. Hines, 164 N. C., 120), and in accordance with the declared purpose that -final division shall be had when Yirginia becomes 21, the time for the happening of the contingency would be that fixed for final division, and the estates and interests will then be absolute.\nThe court may by decree protect the several interests until the estates become absolute, taking into consideration the protection afforded by the guardian bonds of the infants.\nReversed on plaintiffs\u2019 appeal.\nAffirmed on defendants\u2019 appeal.", "type": "majority", "author": "Allen, J." } ], "attorneys": [ "Aydlett <& Simpson for plaintiff.", "JEhringhaus & Small for defendant." ], "corrections": "", "head_matter": "SAVINGS BANK AND TRUST COMPANY, Guardian, et als. v. S. H. JOHNSON et als.\n(Filed 24 February, 1915.)\n1. Wills, Interpretation \u2014 Trusts.\nWhile no particular words are necessary in a will for the creation of a trust, the intention of the testator as gathered .from the whole instrument, and not from parts of it, must be clear and manifest for the courts to declare that one has therein been created.\n2. Same \u2014 Executor and Administrator \u2014 \u201cEntire Control.\u201d\nA devise to the wife of the testator of the home place for life and at , her death to his children in fee, share and share alike, with further provision, in a later item, that Ms wife and children \u201cshall share equally in both real and personal property, the division not to be final until my youngest child, Virginia, is 21, if living, and if either die without children, their property is to be equally divided between their brothers and sisters,\u201d does not create a trust merely by the appointment of executors, stating that they were for the purpose \u201cto execute this my last will and to have entire control thereof so long as may be necessary for the fulfillment of this will,\u201d and to act as guardian for minor children of the .testator, the powers given the executors being only such as they would otherwise have had as a matter of law, and the appointment of a guardian being unnecessary to a trust estate.\n3. Wills\u2014 Interpretation \u2014 Estates\u2014Beneficiaries\u2019 Death \u2014 Limitations\u2014Contingent Remainder \u2014 Trusts.\nA testator who died seized and possessed of a large estate consisting in real and personal property, devised his home place to his wife for life, with limitation over to his children in fee simple, share and share alike, and by a later item provided- that his wife and children \u201cshall share equally in both real and personal property, the division not to be final until my youngest child, Virginia, is 21, if living, and if either die without children, their property is to be equally divided between their brothers and sisters\u201d: Held,, the last words of the quotation refers to the death of the children of the testator and is inconsistent with the construction that the whole property should be held by the .executors, as trustees, such construction applying equally to the wife, who takes her life estate in the home place absolutely. .\n4. Wills, Interpretation \u2014 Executors and Administrators \u2014 Passive Trusts\u2014 Possession and Use \u2014 Statute of Uses.\nExecutors named in a will \u201cto all intents and purposes to execute this my last will and testament; to have entire control thereof so long as may be necessary for the fulfillment of this will,\u201d etc., if construed to hold as trustees, they are, upon the terms of the will being construed, trustees only of a passive trust, and the devisees and legatees will be entitled to the present possession and use of t'he property they derived by the will, under the statute of uses.\n5. Wills, Interpretation \u2014 Contingent Remainders \u2014 Final Distribution.\nA devise and bequest of the testator\u2019s real and personal property to his wife and children, \u201cthe division not to be final until my youngest child is 21 years, \u2022 and if either die without children, their property is to be equally divided between their brothers and sisters\u201d: Held, the wife presently takes her share of the property devised to her; and the children presently take a determinable fee to their whole interest in the property, to be defeated upon the happening of the contingency of dying without children, the final division to take place when the youngest child is 21 years.\nAppeal by plaintiff from Garter, J., at November Term, 1914, of PASQUOTANK.\nAction by tbe guardian of three of tbe devisees and legatees of J. B. Flora against bis executors to compel tbe delivery and payment of tbe devises and legacies, and the matters in controversy depend upon the construction of the will of said Flora, which reads as follows:\nI,J. B. Flora, of the above county and State, and being of sound mind and memory, do make, publish, and declare this to be my last will and testament, as follows:\n1. My executors hereinafter named shall pay all my just debts out of the first money which may come into their hands belonging to my estate.\n2. I give and devise unto my beloved wife, Allie Y. Flora, the home place where I now reside, at the time of my death, together with all the household and kitchen furniture therein, so long as she may live and no longer, and at her death to my children in fee simple, share and share alike.\n3. I give and devise unto my wife and children, share and share alike, all the balance of my property, both real and personal property, after paying the following amounts herein named.\n4. I give to each of my sisters\u2019 three daughters as follows: To Serena, $100; to Georgia, $100, and to Bettie, $200, and to my brother John Flora\u2019s deceased three girl children, $100 each, and to his son, Jerome Flora, a note I have of $150, hereto attached.\n5. I also give to D. G. Brockett $200.\n6. I give to Jerome Flora, my son, $4,000, and to Howard and Edward Flora and to Virginia Flora, my children, $5,000 each, to the equal amount I have given my daughter Ida J. Flora, now Mrs. S. H. Johnson, having bought a home and given her. Also to Howard, Edward, and Virginia I give and bequeath $583.90, with interest at 4 per cent from 28 May, 1913, this being their part received from a dividend of the Mutual Life Insurance Company; Ida and Jerome having had this amount paid to them.\n6. I wish the farm known as the Baxter farm to be divided as follows: Commencing at the Smith line, running down the lead ditch to the river, the eastern part, the old home, to my son Howard, value $12,000; the front part bound by the main road, Smith and Winslow, to Edward, value $10,000; the road leading to both houses to be kept up equally by both. In case that neither one should not want it at the above valuation, it is to be had by the others and the same valuation, and it is not to be sold by either Howard or Edward to any other party except a brother or sister unless they both agree to sell, and this shall not be till they are both 21 years old. The team and farming utensils shall be equally divided between Howard and Edward, the value of farm to include the team and farming utensils.\n1. My wife and children shall share equally in both real and personal property, the division not to be final till my youngest child, Virginia, is 21 years, if living, and if either die without children, their property is to be equally divided between their brothers and sisters.\n8. I hereby constitute and appoint my wife, Alice Y. Flora, and all my children who may be of lawful age, and S. H. Johnson to represent my daughter Ida, my lawful executors to all intents and purposes to execute this my last will, to have entire control thereof so long as may be necessary for the fulfillment of this will, to act as the guardian of my minor children, should there be any.\n9. And shall not be required to give any bonds, and make only such returns to the court that is required by law. In case of minor children, if in the judgment of the executors it is best, they may appoint the Savings Bank and Trust Company guardian.\nIn testimony whereof I have hereunto set my hand and seal this the 6th day of January, 1914.\nWitness: J. B. Flora. [seal]\nH. G. Kramer.\nE. W. Carr.\nThe estate is estimated to be worth $250,000, a considerable portion of which is a prosperous mercantile business.\nThe testator left a wife and five children surviving him, three of the children being under 21 years of age. All the debts of the testator and the legacies given in items 4 and 5 have been paid.\nThe executors contend that the language in item 8 appoints them trustees of the estate, and that they have the right to retain the whole of the estate, and to continue the mercantile business. His Honor ruled against this contention, and the defendants excepted. The plaintiffs contend that they are entitled to have a division of the property now, and to enter into possession thereof.\nHis Honor ruled against this contention, and the plaintiffs excepted.\nJudgment was entered accordingly, and both parties appealed.\nAydlett <& Simpson for plaintiff.\nJEhringhaus & Small for defendant." }, "file_name": "0304-01", "first_page_order": 360, "last_page_order": 365 }