In Re Bulis'estateAnnotate this Case
82 S.E.2d 750 (1954)
240 N.C. 529
In re BULIS' ESTATE.
Supreme Court of North Carolina.
July 9, 1954.
*753 McLean, Elmore & Martin, Asheville, for respondent-appellant John B. Bulis.
Fisher & Fowler, Asheville, for respondent-appellant Charles R. Bulis.
S. G. Bernard, Asheville, for Wachovia Bank & Trust Co., appellee.
Does the earned, undistributed net income of the trust which accumulated during the life of Pansy Bulis, life beneficiary of the trust, belong to her estate or does this fund belong to the remaindermen of the trust, namely: the testator's son B. F. Bulis, and his adopted sons, John B. Bulis and Charles R. Bulis? This is the first question presented by the appeal.
Decision as to this question is controlled by the language of Item Nine of the will. This item directs the trustees to pay the net income of the trust to "Pansy Bulis, as long as she shall live." There is no provision in the will indicating that as to her the trust was intended merely to provide for her upkeep. Nothing is said or intimated that she should be paid only so much of the income as should be needed for her support. The direction that she be paid the net income during the period of her life is without qualification. Nowhere in the will is there any limitation whatsoever upon the right of Pansy Bulis to receive all the net income of the trust so "long as she shall live." The clear import and meaning of Item Nine is that the gift of income to Pansy Bulis during her life is absolute and complete. The recommendation as to using part of the income for the benefit of the testator's sons "according to their respective needs," is precatory in nature and does not raise a trust, spendthrift or otherwise, in favor of the three sons.
Indeed, the recommendation as to minding the sons' needs is left solely to the "sound discretion" of Pansy Bulis. And this discretion, it is significant to note, was made exercisable by her as an individual *754 and not as a co-trustee of the trust. The conditions under which the trustees were authorized to use income under the provisions of Item Nine, or corpus as provided by Item Seventeen, for the benefit of the testator's sons never arose. Therefore, in no aspect of the case are we concerned with the principles of law applicable to discretionary trusts. Accordingly, the authorities cited on that subject are inapplicable and need not be discussed.
The action of the lower court in holding that the undistributed income of the trust which accumulated during the life of Pansy Bulis is an asset of her estate is supported in principle by authoritative decisions of this Court and will be upheld.
In Mason v. Sadler, 59 N.C. 148, the testamentary provision involved was: "I lend to my wife, Polly, during her life, all my Negroes * * * and their increase, for the purpose of raising and educating my two sons * * *." After the death of the widow the Negroes were to go to the sons. The sons sought to have the widow declared a trustee for their benefit in the slaves. Said Manly, J., speaking for the Court, 59 N.C. at pages 150, 151:
"The question presented by the pleadings is, whether the language used by the testator, Foy Mason, in the first clause of his will, creates a trust, in his wife, of Charles, Clarissa, and Betsy, for the sons, Andrew and Osborne. * * *
"Thus, the equity of the bill rests upon the principle, that the slaves loaned to the wife, for life, was a trust, solely for the benefit of the children during that term. Indeed, that is the leading allegation of the bill. This, we think, is a misconstruction of the will. Considering the clause, in connection with the other bequests of the will, we are of opinion the wife, under the bequest, took an absolute legal estate, and that the words, `for the purpose of raising and educating my two sons,' have not the effect to qualify that estate. Our interpretation is, that the words mean to give a reason for the gift, and in that way, to suggest and recommend a duty that was incumbent on her."
In Carter v. Strickland, 165 N.C. 69, 80 S.E. 961, there was a devise to the testator's niece with this provision: "`* * * and it is my request that my said niece * * * shall, at her death, devise said tract of land to her daughter, Myrtie E. Carter.'" Hoke J., speaking for the Court, said in part, 165 N.C. at pages 71, 72, 80 S.E. at page 961:
"Some of the earlier English cases, and they have been followed by decisions in this country, are to the effect that a trust will be engrafted or imposed upon an estate, absolute in terms, or upon its holder, by reason of precatory words in a will whenever `the objects of the precatory language are certain and the subject of the recommendation or wish is also certain'a position supposed to best effectuate the intent of the testator. A consideration of the later cases, however, will show that, in the decisions referred to, the principle has been too broadly stated, and it is now the prevailing doctrine, certainly so in this jurisdiction, that such words will be given their ordinary significance, and will not have the effect, as stated, unless, from the terms and dispositions of the will and the circumstances relevant to its proper construction, it clearly appears that they are to be considered as imperative and that the testator intended to create a trust." And again, 165 N.C. at page 74, 80 S.E. at page 963: "On perusal of the will and the facts in evidence, we are of opinion, as stated, that plaintiff is entitled to the property in absolute ownership, and that the decree protecting her in the possession and enjoyment of such an estate must be affirmed."
In Dixon v. Hooker, 199 N.C. 673, 155 S.E. 567, 568, a bequest was made to the testator's wife "`for and during her natural life * * * to have the use and benefit of so long as she lives. * * * My wish and desire is that in the event that my wife should not spend and use all of the personal property mentioned in Item 2 of this will for her support while she lives, that she give and bequeath at her death $1,000.00 in cash or bonds or stock to the Christian Church of Greenville, N. C. * * * and the remainder of the said personal property *755 * * * to my sister * * * but I want my wife to use and spend just as much of said personal property as she desires for her comfort and pleasure.'" There the Court said in part, 199 N.C. at pages 677, 678, 155 S.E. at page 570:
"On the other hand, if the said language is not a limitation over, but is only an expression of the wish and desire which the testator had at the date of the execution by him of his last will and testament, and which he intended that his wife should observe or not, in her discretion, then, under Jordan v. Sigmon [194 N.C. 707, 140 S.E. 620], she was the owner of the property described in the complaint, absolutely, and not for her life only, and the judgment of the superior court must be affirmed.
"It is clear from the language used by the testator in item 6 of his last will and testament that he did not give and bequeath to the Christian Church of Greenville, N. C. the sum of $1,000, nor did he give and bequeath to the children of his sister the said property or any part thereof; he was content to express a wish and desire that his wife, Mrs. Gertrude H. Coward, should make these gifts. There was no limitation over of the personal property which he had given and bequeathed to his wife for her life by item 2 of his will, for it is manifest that it was not the intention of the testator that the Christian Church of Greenville, N. C., or that the children of his sister should take under his will: at most they were to take from and under his wife, Gertrude H. Coward.
"It is also clear that the testator did not intend by the language used by him to impress upon the title of his wife to the personal property given and bequeathed to her by item 2 of his will any trust in favor of the Christian Church of Greenville or of the children of his sister, Gabrella Dixon. Whether or not she should give and bequeath to said church the sum of $1,000, or to said children the remainder of the personal property, given and devised to her by item 2 of said will, and not used or expended by her during her life, was to be determined by her in the exercise of her discretion. As to the disposition of said personal property after the death of his wife, the testator was content to leave this matter to her discretion, realizing, doubtless, that the conditions under which he made his will might not exist after his death, and while his wife was living."
In Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368, a devise of real estate was made to devisees "`to do as they like with'" the property, with a subsequent provision stating, "`I wish that after my death and the death of the brothers & sisters, named in this will, whatever property there is left shall go to my niece, Geneva Taylor Lewis and her husband, Mark Lewis.'" It was held that the property was owned in fee simple by the beneficiaries first named.
In re Wilkening's Will, 137 Misc. 451, 244 N.Y.S. 115, 117, involves a testamentary provision directing payment of income by the trustees to the testator's son's wife, "`for his support, during the life of the trust'". It was held that the words "`for his support'" were precatory and that the wife was entitled to the income without restriction.
See also Slater v. Slater, 46 Misc. 332, 94 N.Y.S. 900; Schneiderhahn's Guardian v. Zeller, 33 Ky.Law Rep. 694, 110 S.W. 834; Bogert, Trusts and Trustees, Vol. 1, Sec. 48.
The following cases, which seem to come closest to supporting the appellants' views, are factually distinguishable and for that reason are not considered authoritative here: Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793; Carter v. Young, 193 N.C. 678, 137 S.E. 875; Young v. Young, 68 N.C. 309. See Brinn v. Brinn, supra, for clear statement by Barnhill, J., (now C. J.) of the rules applicable to the interpretation of precatory words in a dispositive instrument. See also 54 Am.Jur., Trusts, Sections 54 to 58.
Also on the question of spendthrift trusts see G.S. § 41-9; Mebane v. Mebane, 39 N.C. 131; Pace v. Pace, 73 N.C. 119; *756 Bank of Union v. Heath, 187 N.C. 54, 121 S.E. 24; Mizell v. Bazemore, 194 N.C. 324, 139 S.E. 453; Annotation: 119 A.L.R. 31, p. 61.
2. The next question for decision is this: Should the corporate dividends declared and made payable to stockholders of record on dates prior to the death of the life beneficiary, Pansy Bulis, but not actually received by the surviving trustee until after her death, be placed in the earned income account and paid over to the executor of Pansy Bulis, or credited to the accounts of the remaindermen of the trust, namely: the three sons of the testator?
The court below treated these dividends as earned net income belonging to the estate of the life beneficiary, Pansy Bulis, and directed payment to her executor. We approve the ruling below. It is supported by the decided weight of authority in this country. In 13 Am.Jur., Corporations, Sec. 673, it is stated: "It is thegeneral rule that the declaration of a cash dividend, whether on common or preferred stock, creates a debt from the corporation to each of its stockholders who then hold such stock." To like effect see 18 C.J.S., Corporations, § 467. See also Annotations, 60 A.L.R. 703. This is in accord with the decision in Trustees of University v. North Carolina R. Co., 76 N.C. 103, at page 106, where it is stated: "A dividend declared by and due from a private corporation is a debt due to the shareholder and is recoverable as such."
And coming to the precise point on which decision on this aspect of the case turns, we find this statement of the controlling rule in 33 Am.Jur., Life Estates, Remaindermen, etc., Sec. 285, p. 792: "Remaindermen under a will are not entitled to the income from an estate until after the death of a life tenant, and, moreover, any unpaid balance of income which has accrued to the life beneficiary of a trust which has terminated belongs to the estate of such beneficiary." See First Nat. Bank & Trust Co. v. Baker, 124 Conn. 577, 1 A.2d 283, 118 A.L.R. 339, wherein it is held that any unpaid balance of income accrued to the beneficiary of the trust before its termination belongs to his estate. See also Commercial Trust Co. of New Jersey v. Spiegelberg, 117 N.J.Eq. 171, 175 A. 164; Annotation, 126 A.L.R. 12, pp. 30, 31.
And as bearing directly on the instant question of corporate dividends, we find this statement of principles in the annotation appearing in 72 A.L.R. 981, p. 982: "* * * it is almost uniformly held, in the absence of applicatory statutory provision to the contrary, that ordinary current dividends are not apportionable, but are payable in entirety to the life tenant if declared, or at least if declared and payable, during the continuance of that interest * * *." See also Annotation, 130 A.L.R. 492.
In Nutter v. Andrews, 246 Mass. 224, 142 N.E. 67, it is held that dividends declared before the death of a life tenant, payable after her death, to stockholders of record before her death, go to the estate of the life tenant.
The decisions in Commerce Union Trust Co. v. Thorner, 198 N.C. 241, 151 S.E. 263; Minot v. Tappan, 127 Mass. 333; Stempel v. Middletown Trust Co., 127 Conn. 206, 15 A.2d 305, 157 A.L.R. 657, and other cases referred to in the annotation appearing in 157 A.L.R. 668, and cited by the appellants, have been examined and considered. They are factually distinguishable and are not considered controlling here.
3. The final question presented for decision is whether the item of $5,000 representing the advancement to John B. Bulis in December, 1952, should be charged to him and credited to the accumulated income account for payment to the executor of Pansy Bulis, as proposed by the surviving trustee. The court below held that the item should be debited and credited as proposed, and we approve. The memoranda signed by the parties when the $5,000 was paid to John B. Bulis clearly shows it was intended as an advancement to be *757 repaid. The fact that the money was withdrawn from the accumulated income, rather than corpus, does not change the recipient's obligation to make restitution.
It follows from what we have said that the judgment below is