First-Citizens Bank & Trust Co. v. Barnes , 24 N.C. App. 347 ( 1975 )

MORRIS, Judge.

No question is raised by anyone involved in this litigation with respect to the procedure adopted. We assume that the action is brought under the provisions of G.S. 1-253.

Before we get into the merits of the appeal, we think it appropriate to note that we agree with the trial court that the only justiciable issue of the issues set out in the complaint is the one answered by the trial court.

The correct interpretation of the provisions of testator’s will presently before us is far more difficult of determination.

General principles applicable in construing a will are set out by Justice Branch in Kale v. Forrest, 278 N.C. 1, 5, 6, 178 S.E. 2d 622 (1970) :

“The intent of the testator is his will, and such intent as gathered from its four corners must be given effect unless it is contrary to some rule of law or is in conflict with public policy. (Citations omitted.)

The intent is ascertained, if possible, from the testator’s language and in light of conditions and circumstances existing at the time the will was made. (Citation omitted.) In considering the language used, technical words will be presumed to have been used in their technical sense unless the other language of the will evidences a contrary intent; however, when testator obviously does not intend to use words in their technical sense, they will be given their ordinary and popular meaning. (Citation omitted.) In any event, the use of particular words, clauses or sentences must yield to the purpose and intent of the testator as found in the whole will. (Citations omitted.)”

There is one intention in the will before us which is not laden with ambiguity, and that is that the testator did not intend that the corpus of trusts bequeathed to the trustee for the benefit of his grandchildren be equal. He very clearly provided that the net income from 8.97% of his stock in Maola should be held in trust for the use and benefit of his three grandsons and that the net income from 10.65% of the stock should be held in trust for the use and benefit of his four granddaughters.

He goes on to provide that in the event of the death of “each of” his sons, the “stock held for the benefit of the one so dying shall be held in trust for the benefit of my grandchildren designated in the next preceding paragraph, and shall become a part of the trust set out in the next preceding paragraph for said grandchildren ...” With respect to the disposition of the stock in his wife’s trust, if not appointed by her, testator provides- that it is to be “disposed of in accordance with paragraphs 2 and 3 of Item V of this Will ...” It appears obvious that testator intended that the whole of that part of his testamentary estate which formed the corpus of various trusts should eventually be channelled into the trust established for his grandchildren. As already pointed out, it is completely clear that the testator did not wish these trusts to be equal in value — neither with respect to total corpus for each trust nor the corpus set aside for each grandson as compared with that set aside for each granddaughter.

To us that intent is further evidenced by his provision in the event of the death of a grandchild without lineal descendants. He specifically and without equivocation provided that in: that event, the “share” of the one dying should “go to the surviving grandchildren for their lives in the same proportions as set out in paragraph 2 of Item V.” We think the testator clearly intended that the share of Eleanor Barnes in the trust must now be divided in the same proportions as the corpus was divided between the two trusts for the grandchildren in paragraph 2 of Item.V—i.e., 54.28% to the trust for granddaughters-and 45.72% to the trust for the grandsons. There is no technical language used which must be considered.

We reach a different result with respect to the accumulated'income. The testator used the word “jointly” in directing income distribution to the granddaughters. That the word was not intended to apply to eventual corpus distribution is evidenced by specific provisions for that in section 6 of the same Item. However, nowhere else in the will does there appear the word jointly. Actually, in other portions of the will where the testator refers .to income distribution, he uses the words “share and share alike” and “per capita.” Of primary importance in determining testator’s intent with respect to income distribution within the trusts set up is his language in the second paragraph of paragraph 2 of Item V, the portion of the will by which he established the trusts. After he had directed the trustee “to apply the net income from ten and 65/100 (10.65%) percent of said stock after any; sale under Item III hereof, in trust for the use and benefit of my four granddaughters jointly,” he said: “The said income is to be paid to the persons named in the proportions set out, or for their benefit, in equal shares as frequently as earnings or dividends on said stock shall be available for such purposes, this to continue so long as each beneficiary named in this paragraph shall live ...” Again, in paragraph 3 of Item V in providing that upon the death of each son, the stock held by the trustee for the one dying should become a part of the “trust for the benefit of my grandchildren designated in the next preceding paragraph” and referring to income distribution the testator said: “the distribution to my said grandchildren to be on a per capita basis as set forth in the proportions set forth in the next preceding paragraph” (referring to paragraph 2, Item V). Here, it seems to us that testator has clearly demonstrated a contrary intent — that is, he did not intend to use the word “jointly” in its technical sense. Kale v. Forrest, supra. We think testator demonstrated an intent that the income from the trust for the granddaughters, like the one for the grandsons, be distributed to the beneficiaries equally. It follows, therefore, that under paragraph 6 of Item V, the testator would intend that accumulated but undistributed income would, at the death of a beneficiary — grandchild, be distributed in equal shares to the surviving grandchildren.

The cause is, therefore, remanded for the entry of a judgment in accordance with this opinion.

Modified and remanded for judgment.

Judges Martin and Arnold concur.