Matheson v. American Trust Company

100 S.E.2d 77 (1957)

246 N.C. 710

Beulah T. MATHESON v. AMERICAN TRUST COMPANY, Trustee under the Last Will and Testament of James Pleasant Matheson, deceased; Nell Coffey Linney, Administratrix c. t. a. of the Estate of Baxter M. Linney, deceased; Nell Coffey Linney, Margaret Linney Coffey, Mary Frances Linney Brewer, Kenneth Bogle Linney; Mamie Lee Matheson, Administratrix of the Estate of Robert Atwell Matheson, deceased; Mamie Lee Matheson; Glenn Holland, Executor of the Estate of Lillian Matheson Holland, deceased; Glenn Holland, Robert Glenn Holland, Lucile Matheson Abernethy, Mary Ayres Payne Campbell, William Matheson Payne, and those unknown and unborn persons who may hereafter, by either birth or adoption fall within the class designated by James Pleasant Matheson, deceased, in his Will as "my nieces and nephews" prior to the death of the plaintiff, Beulah T. Matheson.

No. 242.

Supreme Court of North Carolina.

October 16, 1957.

*79 Kennedy, Covington, Lobdell & Hickman, Charlotte, by W. T. Covington, Jr., Charlotte, for plaintiff, appellant.

Harry C. Hewson, Charlotte, for Guardian ad Litem, appellant.

Taliaferro, Grier, Parker & Poe, Charlotte, by Joseph W. Grier, Jr., Sydnor Thompson, Charlotte, for defendant Nell Coffey Linney, appellee.

Charles W. Campbell, Reidsville, for defendants Mary Ayres Payne Campbell and William M. Payne, appellees.

Scott, Collier & Nash, Statesville, by Robert A. Collier, Statesville, for defendant Lucile M. Abernethy, appellee.

Deal, Hutchins & Minor, Winston-Salem, by Roy L. Deal, Winston-Salem, for defendants Margaret Linney Coffey, Mary Frances Linney Brewer, and Kenneth Bogle Linney, appellees.

Raymer & Raymer, Statesville, by A. B. Raymer, Statesville, for defendants Glenn Holland and Robert Glenn Holland, appellees.

Harry R. Stanley, Greensboro, for defendant Mamie Lee Matheson, appellee.

HIGGINS, Justice.

Stripped of its nonessentials, the question presented is this: Does the plaintiff, Beulah T. Matheson, acquire any right to the income under Items XIII and XVI of the will of James Pleasant Matheson? At the time the will was executed in 1934, and likewise at the time of the testator's death in 1937, W. L. Matheson and his wife, Fairy Porter Hurd Matheson, lived in Mooresville, North Carolina. They had lived together since their marriage in 1900. Fairy Porter Hurd Matheson was well known to the testator. After the testator's death the brother, W. L. Matheson, and his wife, Fairy Porter Hurd Matheson, received the income from the fund in equal parts until her death in 1948. Thereafter W. L. Matheson, the survivor, received the entire income until his death in 1956. Nothing appears in the will or in the attendant circumstances surrounding the testator, at the time he made it, to indicate he had in mind as a beneficiary any wife of his brother W. L. Matheson, except the one to whom he was then married and with whom he then lived in Mooresville, N. C.

Item XIII disposes of the income during the life of the trust. Item XVI disposes of the corpus at the end of the trust period, except as to the 12/72nds thereof which the trustees "shall continue to hold" and pay the income to W. L. Matheson and wife exactly as directed in Item XIII. The two items must be construed together.

The plaintiff's contention the gift to the wife of W. L. Matheson is a class gift is without support. A gift to children or to nieces and nephews may be, and often is, a gift to a class. Ordinarily, however, wives do not come as a classthey come one at a time.

A gift to a man and his wife is a gift to the wife living at the date of the *80 will "or living at the date from which the will is deemed to speak." Williams v. Alt, 226 N.Y. 283, 123 N.E. 499, 500; Gurley v. Wiggs, 192 N.C. 726, 135 S.E. 858; Hill v. Aldrich, 326 Mass. 630, 96 N.E.2d 147; In re Fitzgerald's Estate, 178 Misc. 15, 32 N.Y.S.2d 1004; Beers v. Narramore, 61 Conn. 13, 22 A. 1061; Wachovia Bank & Trust Co. v. Green, 239 N.C. 612, 80 S.E.2d 771; Doherty v. Russell, 116 Me. 269, 101 A. 305; Rogers v. Rogers, 174 Misc. 841, 22 N.Y.S.2d 659; Meeker v. Draffen, 201 N.Y. 205, 94 N.E. 626, 33 L.R.A.,N.S., 816.

This Court, speaking through Barnhill, J. (later C. J.), in the case of Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45, 47, said:

"Thus a conveyance, Ballard v. Farley, 143 Tenn. 161, 226 S.W. 544, or a devise, Motley v. Whitemore, 19 N.C. 537, to a named man `and wife' or a deed to a designated person `and children' conveys an estate to the `wife' or `children' living at the time of the execution and delivery of the deed, or, in the case of a will, at the death of the testator. Darden v. Timberlake, 139 N.C. 181, 51 S.E. 895; Buckner v. Maynard, 198 N.C. 802, 153 S.E. 458; Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R.A.1917B, 74; King v. Stokes, 125 N.C. 514, 34 S.E. 641; Helms v. Austin, 116 N.C. 751, 21 S.E. 556; Gay v. Baker, 58 N.C. 344. It is just as effectual as if the name of the wife or child or children had been given in full, 6 Thompson, Real Property, 322, 325, and extrinsic evidence is admissible for the purpose of fitting the description to the person or persons intended. 16 A.J. 482; 6 Thompson, Real Property, 322, 325; Troy & North Carolina Gold Mining Co. v. Snow Lumber Co., 170 N.C. 273, 87 S.E. 40."

Under the factual situation presented here, the bequest to W. L. Matheson and wife of Mooresville, North Carolina, is a bequest to W. L. Matheson and wife, Fairy Porter Hurd Matheson, as effectively as if her name were inserted in the will. The trustees have carried out the trust by paying the net income to W. L. Matheson and wife, Fairy Porter Hurd Matheson, in equal shares until her death, and in paying all income thereafter to W. L. Matheson, the survivor, until his death. By the express provisions of the will the bequest of the income then terminated. It is now the duty of the trustees to distribute the corpus of the fund and all income therefrom since January 18, 1956, to the nine nieces and nephews designated by Judge Sharp in the judgment of March 4, 1957, or to those who legally represent them.

The evidence and the amendment to the complaint offered in the court below were immaterial. The motion to amend here is denied for that reason. The judgment is

Affirmed.