Pittman v. Thomas

293 S.E.2d 695 (1982)

Mary T. PITTMAN and T. P. Thomas, Jr. v. James Miller THOMAS, individually and as Executor of the Will of Catharine Miller Thomas, Deceased, Sarah Anne Thomas (Rowlett), Doris Elizabeth Thomas Taylor, Mary Lucile Pittman, Walter James Pittman, Jr., Lucile West Abitt Bond, Catharine Lucile Thomas Gossam, and Carole Ann Thomas, a minor.

No. 817SC1131.

Court of Appeals of North Carolina.

July 20, 1982.

*697 Rose, Jones, Rand & Orcutt by Z. Hardy Rose and William R. Rand, Wilson, for plaintiffs-appellees.

Tharrington, Smith & Hargrove by Wade M. Smith and Steven L. Evans, Raleigh, for defendant-appellant James Miller Thomas.

George A. Weaver, Wilson, Guardian ad Litem, for defendant-appellant Carole Ann Thomas.

HARRY C. MARTIN, Judge.

We begin with the basic proposition that in the construction of a will the court is required to give effect to the true intent of the testatrix so far as it can be ascertained from the whole instrument and from the conditions and circumstances attendant to its making, if such intent is consistent with the rules of law and does not contravene public policy. Y.W.C.A. v. Morgan, Attorney General, 281 N.C. 485, 189 S.E.2d 169 (1972); Kale v. Forrest, 278 N.C. 1,178 S.E.2d 622 (1971). However, the intent of a testatrix to make a testamentary disposition of her property must be expressed in such terms that a court can determine her intention or wish without resort to conjecture. "Both the thing given and the person to whom it is given must, in testamentary dispositions of property, be set forth with such certainty that the court can give effect to such gift when the estate is to be distributed." 1 Bowe-Parker, Page on Wills § 5.11 (rev. 3d ed. 1960); Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246 (1956).

We agree with Judge Fountain's conclusion that item VII of the subject will is not void. Item VII, taken together with the language of the entire will and the conditions and circumstances existing at the time the will was made, manifests an intent on the part of the testatrix to create a testamentary trust.

Ordinarily, mere precatory words will not create an express trust. Andrew v. Hughes, 243 N.C. 616, 91 S.E.2d 591 (1956). Nevertheless, precatory words will create a trust when it appears from the instrument as a whole that the testatrix so intended, provided that the subject matter, the objects of the intended trust, and the trust purpose are described with sufficient certainty. Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793 (1938). Where precatory language is addressed to an executor, the courts are inclined to create a trust. G. Bogert, The Law of Trusts § 19, at 43 (5th ed. 1973).

It is apparent from the will as a whole that Mrs. Thomas was keenly interested in seeing that all of her children and grandchildren were given every opportunity to pursue their educational goals. To this end she provided, in her will, a specific gift of $10,000 for each grandchild who had not been so provided for under her husband's will. It further appears that the financial difficulties which threatened the immediate educational goals of two of her grandchildren, *698 Sarah Anne and Doris Elizabeth, prompted her to establish the additional benefits of item VII. Nowhere do we find, however, that it was Mrs. Thomas's intention to pay for all the educational expenses of all her grandchildren. It appears, rather, that she expressed a willingness, while alive and through item VII of her will, to provide financial assistance if and when needed. We do not construe the word "complete" in item VII as an open-ended offer to entirely subsidize the education of any beneficiary. We hold that by item VII Mrs. Thomas established a trust fund to insure that no beneficiary be forced to abandon an educational goal for financial reasons. Brinn, supra. In light of this holding, the trial court erred in ordering that Sarah Anne be reimbursed for educational expenses incurred during the testatrix's lifetime. Sarah Anne received inter vivos gifts to the extent that the testatrix deemed necessary at the time.

We further hold that all those named under item VII are entitled to the status of beneficiary. The fact that Catharine Lucile Thomas, Walter James Pittman, Jr., and Carole Ann Thomas are each entitled to the benefit of an additional $10,000 to defray educational expenses does not preclude their inclusion under item VII. Mrs. Thomas made it clear in item VI of her will that these legacies were intended to parallel those given under the will of her husband to the grandchildren then living at her husband's death.

The more difficult question to settle is whether the trust res is described with sufficient certainty. As the will clearly establishes that money is the subject matter of the trust, it is only the amount that is left uncertain. The amount of property to which the trust is attached must be established with reasonable certainty or be capable of being definitely ascertainable. Restatement (Second) of Trusts § 76 (1959). It is ordinarily sufficient if the general scheme of the trust is reasonably evident. 76 Am.Jur.2d Trusts § 39 (1975). The extent of the interest of a beneficiary of a trust need not be definite at the time of the creation of a trust if it is definitely ascertainable within the period of the rule against perpetuities. Restatement of Trusts, supra, § 129. The interests of the beneficiaries under item VII are definitely ascertainable according to this principle.

If the settlor's description of the trust property is satisfactory, except that he does not state what is to be the extent or size of the interest to be held in trust, any difficulty can usually be obviated by applying the rule that, in the absence of express evidence otherwise, the trustor is deemed to have intended to give the trustee such an interest as is needed for the achievement of the objects of the trust.

G. Bogert, The Law of Trusts and Trustees § 111 (2d ed. 1965). The language of item VII suggests that the amount of money necessary to accomplish the purpose of the trust is to be fixed by the executors in the exercise of their discretion. As such, "there is a satisfactory res because, although not defined by the settlor at the time of trust creation, he has provided a means for making it certain." Id.

The judgment of the trial court is vacated and the cause remanded to the Superior Court of Wilson County for further proceedings not inconsistent with this opinion.

Vacated and remanded.

HILL, J., concurs.

VAUGHN, J., dissents.

VAUGHN, Judge, dissenting:

I vote to affirm the judgment of Judge Fountain.