{ "id": 8626186, "name": "CATHERINE HEYER, Guardian, v. MARY BELL BULLUCK et al.", "name_abbreviation": "Heyer v. Bulluck", "decision_date": "1936-06-15", "docket_number": "", "first_page": "321", "last_page": "330", "citations": [ { "type": "official", "cite": "210 N.C. 321" } ], "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": "45 N. C., 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687930 ], "opinion_index": 0, "case_paths": [ "/nc/45/0221-01" ] }, { "cite": "43 N. C., 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8680908 ], "opinion_index": 0, "case_paths": [ "/nc/43/0032-01" ] }, { "cite": "12 N. C., 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694051 ], "opinion_index": 0, "case_paths": [ "/nc/12/0382-01" ] }, { "cite": "45 S. E., 904", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "134 N. C., 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272405 ], "opinion_index": 0, "case_paths": [ "/nc/134/0024-01" ] }, { "cite": "80 S. E., 410", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "164 N. C., 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656593 ], "opinion_index": 0, "case_paths": [ "/nc/164/0113-01" ] }, { "cite": "58 N. C., 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684942 ], "opinion_index": 0, "case_paths": [ "/nc/58/0082-01" ] }, { "cite": "59 N. C., 225", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "45 N. C., 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685648 ], "opinion_index": 0, "case_paths": [ "/nc/45/0143-01" ] }, { "cite": "59 N. 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E., 342", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217865 ], "opinion_index": 0, "case_paths": [ "/nc/193/0118-01" ] }, { "cite": "172 S. E., 210", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N. C., 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630608, 8630572 ], "opinion_index": 0, "case_paths": [ "/nc/205/0610-02", "/nc/205/0610-01" ] } ], "analysis": { "cardinality": 1222, "char_count": 27363, "ocr_confidence": 0.47, "pagerank": { "raw": 1.2549404682963193e-06, "percentile": 0.9886657484664164 }, "sha256": "e4b9ba2c469ae075a185663f14c020ec2f074bcad5adc85cc5a70d092ceb9226", "simhash": "1:286fb1da28a89dfb", "word_count": 4813 }, "last_updated": "2023-07-14T17:57:05.250790+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CATHERINE HEYER, Guardian, v. MARY BELL BULLUCK et al." ], "opinions": [ { "text": "Stacy, C. J.\nThe cardinal principle in the interpretation of wills is to discover the intent of the testator, looking at the instrument from its four corners, and to give effect to such intent, unless contrary to some rule of law or at variance with public policy. Jolley v. Humphries, 204 N. C., 672, 167 S. E., 417; Ellington v. Trust Co., 196 N. C., 755, 147 S. E., 286; Westfeldt v. Reynolds, 191 N. C., 802, 133 S. E., 168; Whitehurst v. Gotwalt, 189 N. C., 577, 127 S. E., 582; Witty v. Witty, 184 N. C., 375, 114 S. E., 482; 28 R. C. L., 211. \u201cThe will must be construed, Taking it by its four corners\u2019 and according to the intent of the testator as we conceive it to be upon the face thereof and according to the circumstances attendant. We can derive but little help from adjudicated cases upon facts more or less different from those in this ease, for hardly ever can the facts and the language be identical in any two cases. In the construction of a will, therefore, \u2018Every tub stands upon its own bottom,\u2019 except as to the meaning of words and phrases of a settled legal purport. The object is to arrive at, if possible, the intention and meaning of the testator as expressed in the language used by him\u201d \u2014 Ciarle, C. J., in Patterson v. McCormick, 181 N. C., 311, 107 S. E., 12. This rule has been so often stated and reiterated that Brogden, J., in Clement v. Whisnant, 208 N. C., 167, 179 S. E., 430, laconically remarked: \u201cOf course, it is to be conceded that the intent of the testatrix should be the guide to courts. However, this process of probing the minds of persons long in their graves as to what they meant by words used when they were alive is, at best, no more than guesswork. Courts and text-writers have undertaken in some instances to make it highly scientific and specialized guesswork, but it remains guesswork nevertheless.\u201d\nThe same thought was expressed by Judge Story in Sisson v. Seabury, 1 Sumn., 235, Fed. Cas., No. 12, 913, in somewhat similar fashion: \u201cThe difficulty of construing wills in any satisfactory manner renders this one of the most perplexing branches of the law. The cases almost overwhelm us at every step of our progress; and any attempts even to classify them, much less to harmonize them, is full of the most perilous labor. Lord Eldon has observed that the mind is overpowered by their multitudes, and the subtlety of the distinctions between them. To lay down any positive and definite rules of universal application in the interpretation of wills must continue to be, as it has been, a task, if not utterly hopeless, at least of extraordinary difficulty. The unavoidable imperfections of human language, the obscure, and often inconsistent, expressions of intention, and the utter inability of the human mind to foresee the possible combinations of events, must forever afford an ample field for doubt and discussion, so long as testators are at liberty to frame their wills in their own way, without being tied down to any technical and formal language. It ought not, therefore, to surprise us, that in this branch of the law the words used should present an infinite variety of combinations, and thus involve an infinite variety of shades of meaning, as well as of decision.\u201d\nIt is likewise established by the authorities that in determining this intent, the court should place itself as near as practicable in the position of the testator, and where the language is ambiguous, or of doubtful meaning, it should take into consideration his situation, how he was circumstanced, and what effect known forces had upon him at the time the will was executed. Raines v. Osborne, 184 N. C., 599, 114 S. E., 849; Ripley v. Armstrong, 159 N. C., 158, 74 S. E., 961; Smith v. Lbr. Co., 155 N. C., 389, 71 S. E., 445; Freeman v. Freeman, 141 N. C., 97, 53 S. E., 620; Bunting v. Harris, 62 N. C., 11. The rule was stated in Herring v. Williams, 153 N. C., 231, 69 S. E., 140, by Manning, J., as follows: \u201cThe primary purpose of the courts, when a will is presented for construction, is to ascertain the intention of the testator from the language used by him. In ascertaining such intention, the entire will must be considered, and it is competent to consider the condition of the testator\u2019s family, how he was circumstanced, and his relationship to the objects of his testamentary disposition, so as nearly as possible to get his viewpoint at the time the will is executed.\u201d\nEvery expression, to be correctly understood, ought to be considered with a view to the circumstances of its use. Cole v. Fibre Co., 200 N. C., 484, 157 S. E., 859. \u201cA word is not a crystal, transparent and unchangeable; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,\u201d says Mr. Justice Holmes in Towne v. Eisner, 245 U. S., 418. General or particular meaning-content, therefore, may be imputed to words and phrases according to the purposes sought to be accomplished. S. v. Bank, 193 N. C., 524, 137 S. E., 593. And in order to arrive at the intention of the testator, \u201cthe court may reject, supply, or transpose words and phrases.\u201d Washburn v. Biggerstaff, 195 N. C., 624, 143 S. E., 210.\nAgain, it is settled that in this quest for the intention of the testator, resort must first and last be had to the language used by him. Herring v. Williams, supra; Pilley v. Sullivan, 182 N. C., 493, 109 S. E., 359. General provisions are to prevail over minor and apparently inconsistent expressions (Raines v. Osborne, supra), but in the end the intention must appear from the text and context of the will itself. Williams v. Best, 195 N. C., 324, 142 S. E., 2; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892; Campbell v. Crater, 95 N. C., 156. Greater regard is to be given to the dominant purpose of the testator than to the use of any particular words, yet the intent is to be deduced from the will as written. Allen v. Cameron, 181 N. C., 120, 106 S. E., 484; Ralston v. Telfair, 17 N. C., 255.\nSumming up the law on the subject in McIver v. McKinney, 184 N. C., 393, 114 S. E., 399, Adams, J., delivering the opinion of the Court, said: \u201cNevertheless, it is generally conceded that in the construction of a will the cardinal purpose is to ascertain and give effect to the intention of the testator \u2014 not the intention that may have existed in his mind, if at variance with the obvious meaning of the words used, but that which is expressed by the language he has employed. The question is not what the testator intended to express, but what he actually expressed in his will, when all its provisions are considered and construed in their entirety,\u201d citing as authorities for the position: Patterson v. Wilson, 101 N. C., 586; Francks v. Whitaker, 116 N. C., 518; Chewning v. Mason, 158 N. C., 579; Dunn v. Hines, 164 N. C., 114; Taylor v. Brown, 165 N. C., 157; McCallum v. McCallum, 167 N. C., 310.\nIt all comes to this: When a will is presented for construction, the intention of the testator is to govern, and this is to be ascertained from the language used by him. Trust Co. v. Cowan, 208 N. C., 236, 180 S. E., 87; Haywood v. Rigsbee, 207 N. C., 684, 178 S. E., 102; Scales v. Barringer, 192 N. C., 94, 133 S. E., 410; Gordon v. Phringhaus, 190 N. C., 147, 129 S. E., 187; Holt v. Holt, 114 N. C., 241, 18 S. E., 967.\nTurning then to the will submitted for construction and looking at the first item in dispute, we find written upon the margin, opposite the general legacies, these words: \u201cTo my grand daughter and namesake Mary Bell Heyer 30,000 thirty thousand dollars. I received from her father Henry Heyer. When she becomes 30 years old now invested in Pub. Utilities.\u201d Marks appearing on the will indicate that this was intended to be inserted between the gifts to Virginia Jardine and George Baldwin. His Honor found, from an inspection of the original will, that it was not clear whether the punctuation after the word \u201cDollars\u201d is a comma or a period. There is no question as to the validity of the bequest. The will is submitted for construction as probated.\nThe controversy arises over whether this \u201cmarginal\u201d bequest is general, specific, or demonstrative.\nA general legacy is one that is payable out of the general assets of the estate, such as a gift of money or other thing in quantity, and not so given as to be distinguishable from other assets of like kind. Shepard v. Bryan, 195 N. C., 822, 143 S. E., 835; Graham v. Graham, 45 N. C., 297; 28 R. C. L., 291.\nA specific legacy is a bequest of a specific article, distinguished from all others of the same kind, pointed out and labeled by the testator, as it were, for delivery to the legatee, such as a particular horse, a piece of silver, or money in a certain purse or chest, or a particular corporate stock, or a particular bond or other obligation for the payment of money. Shepard v. Bryan, supra. \u201cIf the thing bequeathed is, by the terms of the will, individuated so that it is distinguishable from all others of the same kind, it is a specific legacy\u201d- \u2014 Leaming, V. C., in Kearns v. Kearns, 11 N. J. Eq., 453, 76 Atl., 1042, 140 Am. St. Rep., 575.\nA demonstrative legacy is a bequest of money or other fungible goods, payable out of or charged upon a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fail, and so described as to be indistinguishable from other things of the same kind. Shepard v. Bryan, supra; 28 R. C. L., 292.\nIt is clear that the bequest in question is not specific. Smith v. Smith, 192 N. C., 687, 135 S. E., 855. This may be put aside.\nIs it general or demonstrative ?\nIt is inserted along with the general legacies in the will. Also it is observed the gift is \u201cTo my grand daughter and namesake Mary Bell Ileyer 30,000 thirty thousand dollars . . . when she becomes 30 years old.\u201d The remaining expressions, we apprehend, were used merely to indicate the reason for the seeming preference or partiality on the part of the testatrix, and to explain what she had done with the insurance money. Having shared equally with her son and daughter in their father\u2019s estate, the testatrix no doubt thought it but meet, before dividing her own property, to return to Henry\u2019s daughter a sum equal to the insurance funds which she had received from him upon his death. It is not material that she preferred Henry\u2019s daughter over his son. There may be a reason for this, but whether there is or not, it is the testatrix\u2019 will we are interpreting. In any view of the matter, her \u201cnamesake\u201d was unmistakably the special object of her bounty. Moreover, had the testatrix here intended a demonstrative legacy, it is highly improbable that she would have postponed its enjoyment until the legatee reaches the age of thirty years. She had seen great fluctuations in the value of utility stocks. The bequest is regarded as general rather than demonstrative.\nThe general rule in respect of interest on such legacies, when immediately payable and not promptly paid, is that they bear interest from the end of one year after the testator\u2019s death. Shepard v. Bryan, supra; Moore v. Pullen, 116 N. C., 284, 21 S. E., 195; Hart v. Williams, 77 N. C., 426; 28 R. C. L., 353. And in Swann v. Swann, 58 N. C., 297, it was said this general rule applies to pecuniary legacies to grandchildren, when it does not appear the testator stood towards them in the relation of parent or in loco parentis. Compare McWilliams v. Falcon, 59 N. C., 235.\nHowever, this rule would not apply to the instant legacy because it is not required to be paid until the legatee \u201cbecomes 30 years old.\u201d The amount bequeathed, thirty thousand dollars, will be due and payable at that time, and it bears no interest in the interim. Croom v. Whitfield, 45 N. C., 143; Ballantyne v. Turner, 59 N. C., 225.\nSpeaking to the identical question in Holt v. Hogan, 58 N. C., 82, it was said that while such a legacy is vested and will not be defeated by the death of the legatee prior to reaching the designated age, still the bequest would not bear interest except from the time it becomes due and should be paid.\nWe come next to the residuary clause, the second item in difference.\nThe judgment below is correct in decreeing that Mrs. Bulluck, the executrix, takes no personal interest in the residuum. Not only is the balance of the estate to be held by her \u201cin trust,\u201d but her husband is to have no part in its \u201cmanagement.\u201d The testatrix knew that a trust estate would need to be managed rather than used, and she expressed the hope that Mr. Hugh MacCrae would see to it that her wish \u201cas to the management\u201d was carried out.\nThe primary purpose of the testatrix was to leave her property to her grandchildren, but not without some intervening active \u201cmanagement.\u201d She was not on friendly terms with either her daughter-in-law or her son-in-law. Both were excluded from any share in the estate. Knowledge that her daughter\u2019s financial interests were interlinked with those of her husband, together with her disdain for the latter, doubtless caused the testatrix to forego leaving any personal bequest to her \u201cdear & only child.\u201d Her son was dead. She could leave nothing to his widow. Her son-in-law was likewise non grata persona. He, too, was eschewed. The grandchildren thus became the primary objects of her bounty. To them, and to them alone, she intended to leave the residuum of her estate.\nThe argument on behalf of the executrix that she takes a life estate in the residuum was pressed before us with much learning and great earnestness. Several expressions lend color to this view, as well as the rule against disinheritance. Dunn v. Hines, 164 N. C., 113, 80 S. E., 410; Whitfield v. Garris, 134 N. C., 24, 45 S. E., 904; Clark v. Hyman, 12 N. C., 382; 28 R. C. L., 229. The overshadowing purpose of the will, however, seems to forbid such construction. Had the testatrix intended to give her daughter a life estate in the residuum, she would hardly have designated Mr. MacCrae \u201coverseer to this will that my wish as to management be carried out.\u201d And the provision in respect of forfeiture, in case her son-in-law participate in its management, is likewise subversive of an intent to bequeath her daughter any individual interest therein. It would be necessary to write these expressions out of the will in order to give the daughter a life estate in the residuum. Thompson v. Newlin, 43 N. C., 32; 1 Page on Wills, sec. 814. While they may contain a modicum of distrust and prejudice, nevertheless they point unerringly to the testatrix\u2019 intent. The motive is not material so long as the purpose is clear (Hilliard v. Kearney, 45 N. C., 221), and the end is lawful. Thompson on Wills (2d Ed.), sec. 219.\nThe judgment below is also correct in holding that Mrs. Bulluck is to manage the residuary estate, under orders of the court, with such compensation from time to time as the court shall allow. That portion of the judgment, however, which gives the trustee carle Handle authority to do \u201cas she sees fit in the full, unrestrained exercise of her discretion\u201d is unwarranted and will be stricken out. Mrs. Bulluck\u2019s trusteeship is not unlike others of similar kind. It is subject to the control of the court at all times. Woody v. Christian, 205 N. C., 610, 172 S. E., 210; Bank v. Edwards, 193 N. C., 118, 136 S. E., 342; Carter v. Young, 193 N. C., 678, 137 S. E., 875; Bank v. Alexander, 188 N. C., 667, 125 S. E., 385; Fisher v. Fisher, 170 N. C., 378, 87 S. E., 113; Albright v. Albright, 91 N. C., 220; Jordan v. Jordan, 4 N. C., 292.\nThe income, as it accrues, is to be paid in equal proportions, first, to the respective guardians, parties hereto, then to the beneficiaries themselves, per stirpes, as they reach their majorities, and, when the youngest grandchild \u201cis 30 years old,\u201d the corpus of the residuum is to be divided into two equal parts' \u2014 one part delivered to the trustee\u2019s children and the other part turned over to her brother\u2019s children.\nThe trust is not a passive one, such as in McKenzie v. Sumner, 114 N. C., 425, 19 S. E., 375, and must be kept active, to the end that the \u201cmarginal\u201d legacy of $30,000 to Mary Bell Heyer may be paid \u201cwhen she becomes 30 years old\u201d; and further, that \u201cthe balance\u201d may be \u201cintrusted,\u201d managed and ultimately divided as the will directs. If for any reason the payment of the bequest to testatrix\u2019 \u201cnamesake\u201d should be anticipated (in which event the plaintiff would receive only the present worth or present cash value of such legacy), or when it is paid, a situation may then arise which would justify the chancellor in closing the trust and relieving Mrs. Bulluck of the further duties of her trusteeship, if she so desire.\nThe cause will be remanded for judgment accordant herewith, the costs to be paid out of the trust estate.\nError and remanded.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Marsden Bellamy and Bryan & Campbell for plaintiff.", "John D. Bellamy for Mary Bell Bulluck.", "Emmett H. Bellamy for B. D. Bulluck, guardian." ], "corrections": "", "head_matter": "CATHERINE HEYER, Guardian, v. MARY BELL BULLUCK et al.\n(Filed 15 June, 1936.)\n1. Wills E a \u2014 Intention of testator governs in construing a will.\nIn construing a will, the intent of the testator as gathered from the entire instrument and as expressed in the language used, is controlling, unless contrary to some rule of law or at variance with public policy, and when the language used is ambiguous, resort may be had to the situation and circumstances surrounding the testator and his relationship to the beneficiaries, in order that the language may be interpreted from testator\u2019s viewpoint, and each expression should be considered in view of the circumstances of its use, and general provisions should prevail over minor and apparently inconsistent expressions, having regard to the dominant purpose of the testator as gathered from the instrument.\n2. Wills P a \u2014 Legacy held general legacy under terms of this will.\nTestatrix bequeathed to her \u201cgrand daughter and namesake Mary Bell Heyer 30,000 thirty thousand dollars. I received from her father Henry Heyer. When she becomes 30 years old now invested in Pub. Utilities.\u201d It appeared that testatrix had received from life insurance upon the life of her son, the grandchild\u2019s father, $30,000. Held: The legacy was a general legacy, payable out of the general assets of the estate when the granddaughter should reach the age of thirty years, the other language of the bequest being regarded as explaining what testatrix had done with the insurance money and as explaining her seeming preference to one of her son\u2019s children over the children of her daughter, and it being improbable that testatrix would have postponed its enjoyment until the granddaughter reached the age of thirty years if the legacy had been intended as a demonstrative legacy. The distinctions between, and incidents of, general, specific, and demonstrative legacies set forth by Stacy, O. J.\n3. Wills E d\u2014\nA bequest of a sum of money to a named beneficiary \u201cwhen she becomes thirty years old\u201d is a vested legacy and not subject to be defeated by the death of the legatee, but the legatee is not entitled to interest thereon, the amount not being payable until the date stipulated.\n4. Wills E f \u2014 Testator\u2019s daughter held to take no interest under the will in this case.\nThe will in this case read, \u201cThe balance of my estate to my dear and only child Mary Bell to be held in trust by her during her lifetime,\u201d with provision following that her husband should have no part in the management of the estate, with provision for forfeiture if he should take part in the management, and that a specified person should see that testatrix\u2019 wish as to the management be carried out. The will provided that the residuum should be equally divided among her son\u2019s and daughter\u2019s children when the youngest should reach the age of thirty. It appeared that testatrix and her daughter\u2019s husband were not on speaking terms, and that testatrix disliked her son\u2019s widow. Held: Testatrix\u2019 daughter took no interest in the residuum, since the will directed that the residuum should go to the daughter \u201cin trust\u201d to be \u201cmanaged\u201d rather than \u201cused\u201d with direction that the person named should see to its \u201cmanagement,\u201d and since it appeared that testatrix wished to exclude both her son-in-law and daughter-in-law, and that any bequest to her daughter would necessarily beneficially affect her son-in-law, and that testatrix\u2019 grandchildren were, under the circumstances, the primary object of testatrix\u2019 bounty.\n5. Wills E h \u2014 Trustee\u2019s management of estate is subject to control of courts.\nWhere a will leaves the residuum in trust to be paid to testatrix\u2019 grandchildren when the youngest attains thirty years of age, the trustee should manage the residuary estate under orders of the court, with such compensation from time to time as the court shall allow, but the trustee\u2019s discretion in the management is not unrestrained, but is subject to the control of the court at all times.\n6. Same \u2014 Income from trust estate should be paid to guardians of beneficiaries during their minorities, and then to beneficiaries themselves.\nWhere a will leaves the residuum in trust to be paid to testatrix\u2019 grandchildren when the youngest attains thirty years of age, the income from the estate should be paid the grandchildren\u2019s respective guardians during their minorities, and then to the grandchildren themselves per stirpes as they reach their majorities, and the corpus equally divided among the grandchildren, as directed, when the youngest attains the age of thirty years.\n7. Wills E h: Trusts E a \u2014 Trust in this case held active and not passive.\nTestatrix directed that one of her grandchildren be paid a stipulated sum when the grandchild should attain the age of thirty years, and that the residuum of the estate be held in trust for all her grandchildren and paid to them equally when the youngest should attain the age of thirty. Held: The trust is an active and not a passive trust to the end that the stipulated sum should be paid the named grandchild when she should attain the age of thirty and the residuum managed and ultimately divided as directed, but if the named grandchild should anticipate her legacy by taking its present cash value, the chancellor might then terminate the trust and relieve the trustee, if she should so desire.\nAppeals by plaintiff and defendants from Williams, Jat December Term, 1935, of New HaNovee.\nCivil action for construction of will.\nTbe record discloses that Mary B. Heyer, late of New Hanover County, died 1 January, 1934, leaving a holograph will, which is now the subject of controversy between or among the parties litigant. It was written in pencil, without the aid of counsel, found among her valuable papers, and has been.duly probated in common form. Here it is:\n\u201cIn the name of God, Amen.\n\u201cI, Mary B. Ileyer, do on tbis the 15tb day of September, 1930, make my last will and testament:\n\u201c \u201cI give to my brother,\n(On the margin) Judge Charles G. Bell.$2000\n* \u201cTo my grand daughter and namesake Mary Bell Heyer 30,000 thirty . thousand dollars. I received from her father Henry Heyer. When she becomes 30 years old now invested in Pub. Utilities.\n\u201cI give to my brother, William K. Bell. 2000\n\u201cI give to- my sister, Annie Y. Buffinger. 2000\n\u201cTo my niece Virginia A. Jardine. 2000 *\n\u201cTo my faithful servant George Baldwin if still in my employ. 1000\n\u201cTo my faithful servant James Highsmith if still in my employ. 1000\n\u201cThe balance of my estate to my dear & only child Mary Bell to be held in trust by her during her lifetime. Her husband to have no part in the management of my estate or this will becomes null & void.\n\u201cAt her decease I desire it to pass to my grandchildren to be divided in two parts, one half to her children and one half to my son\u2019s children when the youngest grandchild is 30 years old.\n\u201cIf any legatee be not living at the reading of this will the legacy reverts to my estate. I appoint my daughter Mary Bell my executor. Mr. Hugh MacCrae overseer to this will that my wish as to the management be carried out. Mary B. Heyer.\u201d\nAdumbrative of the mind of the testatrix, the following background and setting was made to appear in the court below:\n1. In 1913, Matthew J. Heyer died intestate, leaving him surviving his widow, the present testatrix, a son, Henry, and a daughter, Mary Bell. Under the law, these three took equal shares, a third each, in the intestate\u2019s estate, which amounted to approximately $300,000.\n2. Henry, who was a lawyer, administered on his father\u2019s estate, and thereafter managed his mother\u2019s distributive share, commingling it with his own, which, after his death, became the subject of litigation between his mother and his widow.\n3. Henry died in 1929, leaving him surviving his widow, Catherine Heyer, plaintiff guardian herein, and two children under fourteen years of age, plaintiff guardian\u2019s wards herein. At the time of Henry\u2019s death be bad in force life insurance aggregating $30,000, payable to bis mother as beneficiary. Tbis was duly collected and invested in certain public utility stocks, or ratber entrusted to a New York broker for use in wbat appears to be a trading account.\n4. In 1915, tbe daughter, Mary Bell, married Dr. Ernest S. Bulluck, and to tbis marriage five children have been born, represented herein, first by guardian ad litem, and then by their general guardian, R. D. Bulluck, brother of Dr. E. S. Bulluck.\n5. Tbe testatrix, while very fond of her grandchildren, disliked her daughter-in-law, and was not on speaking terms with her son-in-law. The former is not mentioned in her will and the latter is excluded from any part in the management of her estate.\nWith respect to the \u201cmarginal\u201d bequest, the first in controversy, the court held that plaintiff\u2019s ward, Mary Bell Heyer, was entitled to $30,000 of the investments held by the testatrix in public utility stocks at the market value as of 1 January, 1934, plus any difference, if any, in cash necessary to make up such deficiency; the same to be held by the executrix, as trustee, until said minor reaches the age of thirty years, the income in the meantime to be paid to plaintiff guardian. Exception by plaintiff and defendants. The court further held \u201cthat this legacy is a vested demonstrative legacy not bearing interest.\u201d Exception by plaintiff.\nTouching the residuary provision in the will, the next in controversy, the court held:\n1. That the executrix should hold the same as trustee during her lifetime \u201cin such way or manner as she sees fit in the full, unrestrained exercise of her discretion, with no limitations or restrictions placed thereon, except that her husband is not to participate in its management.\u201d Exception by plaintiff and defendants.\n2. That the executrix took no personal interest in her mother\u2019s estate. Exception by defendants.\n3. That the executrix was to manage the residuary estate, together with its accumulations and income, under the orders of the court, with such compensation as the court should allow, and to turn over the corpus to the grandchildren of testatrix, in equal proportions, per stirpes, \u201cwhen the youngest grandchild becomes 30 years old.\u201d Exception by plaintiff and defendants.\nFrom the judgment thus entered, the plaintiff and defendants appeal, assigning errors.\nMarsden Bellamy and Bryan & Campbell for plaintiff.\nJohn D. Bellamy for Mary Bell Bulluck.\nEmmett H. Bellamy for B. D. Bulluck, guardian." }, "file_name": "0321-01", "first_page_order": 387, "last_page_order": 396 }