Branch Banking & Trust Co. v. Whitfield

76 S.E.2d 334 (1953)

238 N.C. 69

BRANCH BANKING & TRUST CO. et al. v. WHITFIELD et al.

No. 394.

Supreme Court of North Carolina.

June 12, 1953.

*337 Whitaker & Jeffress, Kinston, for plaintiff, appellant.

Wallace & Wallace, Kinston, for defendant, appellees.

PARKER, Justice.

Actions for a declaratory judgment under the provisions of G.S. § 1-253 et seq. will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404; Etheridge v. Leary, 227 N.C. 636, 43 S.E.2d 847; Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450. "It does not extend to the submission of a theoretical problem or a `mere abstraction.' * * * It is no part of the function of the courts * * * to give advisory opinions, or to answer moot questions * * *." Poore v. Poore, 201 N.C. 791, 161 S.E. 532, 533. "The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advise." Lide v. Mears, supra [231 N.C. 111, 56 S.E.2d 409].

The plaintiff alleges in its complaint that Katherine Rose Whitfield who was 18 years of age on 1 February 1953, told it that she was considering and contemplating marriage prior to her 21st birthday, and upon such marriage prior to her 21st birthday she would demand that the plaintiff pay her $5,000 as a wedding present from her father in accord with the provisions of Section 3, Item VI of the will. George F. Whitfield who will be 17 years of age on 21 August 1953, made a similar statement to the bank, and said he would make a similar demand upon his marriage under Section 5, Item VI of the will.

The lower court signed a judgment directing that the plaintiff as trustee pay to Katherine Rose Whitfield $5,000 upon her marriage, regardless of whether she was 21 years old at the time, and directed a similar payment to George F. Whitfield upon his marriage, though he married while a minor.

These two minors may marry before they are 21 years of age; they may not. There is no allegation in the complaint that either, or both, are engaged, and the date of the proposed wedding set. The complaint merely alleges that the minors are considering marriage before their 21st birthday. The best-laid plans "gang aft agley."

It seem to us that the question as to whether the plaintiff as trustee shall pay to these two minors $5,000 as a wedding present under the will, if they, or either of them, marry before reaching the age of 21 years presents merely an academic problem, which may or may not arise. That part of the action which requests advice in the administration of the trust estate under Sec. 3 and Sec. 5 of Item VI of the will is ordered dismissed as there is no real existing controversy between the parties on that point, and will not be, unless one or both marry before reaching 21 years of age.

This question is presented: was it the duty of the plaintiff to turn over to Katherine Rose Whitfield the jewelry bequeathed to her in Item II of her father's will when she reached the age of 18 years, and is it its duty to turn over to George *338 Franklin Whitfield the jewelry bequeathed to him in Item III of his father's will, when he reaches the age of 18 years, or to deliver to him the jewelry at an earlier age, if the plaintiff in its best judgment and discretion deems that it will promote the happiness and best interest of George Franklin Whitfield to do so?

To answer this question we must ascertain the intent of the testator as expressed in his will. When that intent is ascertained, the command of the law is "thy will be done," unless contrary to some rule of law or at variance with public policy. House v. House, 231 N.C. 218, 56 S.E.2d 695; Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888.

When the intention of the testator is clearly and consistently expressed, there is no need for interpretation. McCallum v. McCallum, 167 N.C. 310, 83 S.E. 250. A writing is not doubtful if it has the same meaning to everyone. Krites v. Plott, 222 N.C. 679, 24 S.E.2d 531. Construction belongs to the field of ambiguity, or where different impressions are reasonably made on different minds. Walton v. Melton, 184 Va. 111, 34 S.E.2d 129, 162 A.L.R. 1127; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17. A will is to be given effect according to its obvious intent. Brock v. Porter, 220 N.C. 28, 16 S.E.2d 410.

Considering Dr. Whitfield's will from its four corners it is perfectly obvious that he has expressed his intent in language that is clear. definite, explicit and plain of meaning that his daughter Katherine Rose should be given by the plaintiff the jewelry bequeathed to her in Item II of his will when she reached the age of 18 years, if not earlier, and a similar intent in respect to his son as to the jewelry bequeathed to him in Item III of his will. There is no room for construction, and the courts must give effect to his will, as he has seen proper to express it, unless contrary to law or public policy. McCallum v. McCallum, supra; Coppedge v. Coppedge, supra.

Where a will does not specifically provide when a legacy shall be delivered or paid, it seems to be the general rule that a bequest to, or the distributive share of a minor, can be legally paid only to his properly qualified guardian in his fiduciary capacity. 34 C.J.S., Executors and Administrators, § 497, page 400 et seq.; Schouler on Wills, Executors and Administrators, 6th Ed., sec. 3094; Walker v. Walker's Ex'rs, 7 N.C. 265; Fidelity Trust Co. v. Walton, 198 N.C. 790, 153 S.E. 401.

A different question arises when the testator fixes in his will the time for the payment or delivery of legacies.

In 69 C.J., Wills, sec. 2633 it is written: "It is perfectly competent for the testator to fix by will the time for payment or delivery of legacies therein provided for, so long as his restrictions violate no rule of law, and the period is not so uncertain as to be unreasonable, and a court has no power to alter the time of payment so prescribed. Thus, the testator may fix the time of payment within sixty days after his death, on the arrival of the legatee at majority, or some earlier or later age. * * *" This appears to be the general rule though in Re Robertson, 17 Ont.L. 568, 13 Ont.W.R. 208; Re Noyes, 17 Ont. W.N. 302, it has been held that directions to pay to minor have been held not final in the absence of a provision in the will that the infant's receipt shall be a sufficient discharge.

4 Page on Wills (Lifetime Ed.) sec. 1589 states the law thus: "If testator provides specifically in his will at what time a legacy is to be paid, this direction will be enforced, provided that it is not in violation of the rule against perpetuities, and provided it does not violate the rights of testator's creditors. * * * Where testator provides that a certain legacy shall be paid to the beneficiary upon his arrival at majority, or some other specified age, it is payable only at the time fixed. It may, however, be made payable to the legatees personally even though they are not of age." Citing many authorities from various states.

"Wills often contain special provisions as to time of payment which must be followed." Schouler, supra, sec. 3153.

That the respective legacies of jewelry are vested and absolute is undeniable. *339 Shelton v. King, 229 U.S. 90, 33 S. Ct. 686, 57 L. Ed. 1086. The provisions in the will as to when the jewelry should be delivered did not postpone the gift, but only its enjoyment. Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420.

Our decisions are in accord with the rule stated in C.J.S., supra; Page on Wills, supra; Schouler, supra. The general rule in respect of interest on legacies, when immediately payable, and not promptly paid, is that they bear interest from the end of one year after the testator's death. Shepard v. Bryan, 195 N.C. 822, 143 S.E. 835. In Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356, 361, the legacy was payable when the legatee "becomes 30 years old." The Court said: "The amount bequeathed, $30,000, will be due and payable at that time, and it bears no interest in the interim." To the same effect Croom v. Whitfield, 45 N.C. 143; Holt v. Hogan, 58 N.C. 82.

In Cannon v. Cannon, supra [225 N.C. 611, 36 S.E.2d 20], it was held as correctly summarized in the first headnote: " `Where a trust is created by will and by the terms of the trust the income is payable to a beneficiary for a designated period, the beneficiary is entitled to income from the date of the death of the testator, unless it is otherwise provided in the will.'"

These are cases where the will specifically provides when the legacy or devise is to be paid or to take effect. Gibbons v. Dunn, 7 N.C. 548; Southerland v. Cox, 14 N.C. 394; Varner v. Johnston, 112 N.C. 570, 17 S.E. 483; Hill v. Jones, 123 N.C. 200, 31 S.E. 474; Halliburton v. Phifer, 185 N.C. 366, 117 S.E. 296. See also Jackson v. Langley, 234 N.C. 243, 66 S.E.2d 899, where the will fixed the time when the legal and equitable title should vest, discharged of the trust.

Dr. Whitfield died in September 1948 leaving a large estate. No rights of creditors are involved. The provisions of his will do not violate the rule against perpetuities. It is very apparent from his will that Dr. Whitfield was devoted to his two children. He bequeathed to the plaintiff as trustee a large estate to secure the objects of his affection, as far as property can do it, from the vicissitudes of fortune. We can perceive of no reason, no public policy, no rule of law why his jewelry should not be delivered to his daughter and son on their 18th birthdays for such was obviously his intent as set forth in his carefully thought out and drawn will. To hold, as contended for by the plaintiff, that these two minors cannot receive this jewelry on their 18th birthdays, because they cannot give to the plaintiff a binding receipt releasing and discharging it of liability by reason of their infancy would be for the Court to alter their father's will as to the time of delivery of the jewelry. This the Court has no power to do. When the intent of the testator as written in his will is ascertained, the mandate of the law is to enforce the will, unless contrary to law or public policy. Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; House v. House, supra; Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369; Coppedge v. Coppedge, supra; Woodard v. Clark, supra.

The judgment of the experienced and learned trial judge as to the delivery of the jewelry as provided for in Items II and III of the will was correct.

Katherine Rose Whitfield and George F. Whitfield are donees of a gift made to them by their father in his will. The cases cited by the appellant in its brief dealing with the disaffirmance by an infant of a contract, other than for necessaries, are entirely different.

The lower court adjudicated that the plaintiff held the jewelry as a passive trust for safe-keeping. It is not a passive trust for legal title to the jewelry was not placed in the plaintiff by the will. Security National Bank v. Sternberger, 207 N.C. 811, 178 S.E. 595, 97 A.L.R. 720.

All the assignments of error of the plaintiff appellant as to that part of the action for instructions as to Items II and III of the will are not tenable.

For the reasons hereinbefore stated, plaintiff's assignments of error in the ruling *340 of the court below as to Item VI, secs. 3 and 5 of the will are sustained.

The cause is remanded for judgment in accordance with this opinion.

Modified and affirmed.