Fisher v. Melton , 95 N.C. App. 729 ( 1989 )

HEDRICK, Chief Judge.

The pertinent parts of R. B. Melton’s last will and testament provide:

8(g) Upon the death of my daughter and my wife, if she then be my widow, the trust herein created shall be terminated and I give, devise and bequeath to the said Thomas 0. Fulghum, W. B. Melton and Addison Hoyt Smith, or the survivor or survivors of them all of my estate, real, personal and mixed, in equal shares in fee simple.

8(h) For their services, said trustees shall from time to time be paid such reasonable compensation, to be taken out of the funds of this trust, as may be approved by the court to which they make their report, taking into account that they are also devisees under this my last will and testament.

8(i) In the event that any of said trustees should die or resign, or be ■ unable to act before this trust is fully administered, then and in that event, the remaining trustees shall have all of the rights, powers and authority, and duties herein given the original three trustees.

An unnumbered paragraph following Paragraph 8(j) states:

I am setting up the foregoing trust for the benefit of my wife and my only child, Mavis Melton, and devising my property upon the termination of said trust to the three named trustees for the services heretofore rendered to me and to be hereafter rendered in my behalf, not from any lack of love or affection for any of my nieces and nephews not named herein but because I have heretofore already given them money or other property which I think sufficient under the circumstances.

The trial court made the following pertinent findings of fact: The beneficiaries under the trust are the testator’s daughter, Mavis Melton, who died on 26 December 1968 and the testator’s wife, Dorothy Melton, who currently resides in Salisbury, N.C. and has not remarried. The three trustees under the will are deceased. Thomas 0. Fulghum, deceased husband of Lucinda D. Fulghum, was the last survivor of the three trustees named under the will of R. B. Melton.

Of contention between the parties in this case is the interpretation of Paragraph 8(g) of the late R. B. Melton’s will. In construing a will, the court must consider the entire instrument and seek to ascertain from it the testator’s intent. Moore v. Tilley, 15 N.C. App. 378, 190 S.E.2d 243, cert. denied, 282 N.C. 153, 191 S.E.2d 758 (1972); Jernigan v. Lee, 279 N.C. 341, 182 S.E.2d 351 (1971).

We cannot improve on the judgment and opinion authored by Judge Barefoot construing R. B. Melton’s will, and we “adopt and affirm” the same as our own. Judge Barefoot’s opinion states:

4. “Survivor” is one who survives another or one who outlives another or one of two or more persons who lives after the death of the other or others. (Citations omitted).

5. The word “survivor” as used in paragraph 8(g) of the last will and testament of R. B. Melton means the last to die of Thomas 0. Fulghum, Willie Bob Melton and Addison Hoyt Smith, trustees. (Citations omitted).

6. At the time of death of Willie Bob Melton, the fee of Thomas 0. Fulghum was no longer defeasible because there was no possibility that any of the other two could survive him. “When the event upon which the fee is to be defeased becomes impossible the fee becomes a fee simple absolute.” (Citations omitted).

7. Upon the prior deaths of Addison Hoyt Smith and Willie Bob Melton, Thomas 0. Fulghum became the “survivor,” referred to in said Item 8(g). As such, he took the assets of the trust established under the will of R. B. Melton, subject to the beneficial interest therein of Dorothy Melton, the present beneficiary of said trust.

8. The Court is of the opinion that the will of R. B. Melton, read from its four corners, established a clear intent to create in each of said trustees a present vested estate of inheritance in the assets of the trust established by R. B. Melton.

9. The will of R. B. Melton contains no limitation over in the event of death of the said trustees; consequently, in the absence of an express intention to the contrary, the estate in the trustees vested at the time of death of the Testator. However, these vested remainders were subject to be divested under the provisions of said will upon the death or deaths of any of the trustees, until there remained only one “survivor.” (Citations omitted).

10. Because of the Testator’s obvious intent that the trustees should have a vested interest subject to divest, even in the event that no trustee survived the two life tenants, the assets of the trust, subject to the beneficial interest therein of the present beneficiary, became the property of Thomas 0. Fulghum on the date of death of W. B. Melton on December 20, 1985.

11. Because the defendant Lucinda D. Fulghum is the sole and exclusive devisee under the will of Thomas 0. Fulghum, deceased, she took all his property at the time of his death in 1987, and is entitled to all of the remaining assets of the trust established by R. B. Melton subject, of course, to the beneficial interest therein of Dorothy Melton.

12. The defendant Lucinda D. Fulghum is vested of fee simple absolute title to all the remaining assets of the trust of R. B. Melton, Deceased, subject to the beneficial interest therein of Dorothy Melton.

Affirmed.

Judge ORR concurs. Judge Lewis dissents.