WACHOVIA BANK & TRUST CO.
v.
SCHNEIDER et al.
No. 452.
Supreme Court of North Carolina.
April 30, 1952.*581 A. L. Purrington, Jr., Raleigh, guardian ad litem for Nancy Elizabeth Schneider.
Manning & Joslin, Raleigh, for Mildred Patterson Beard and Francis F. Patterson.
Samuel R. Leager, Raleigh, guardian ad litem for all persons in esse and in posse not otherwise represented.
Brassfield & Maupin, Raleigh, for Robert H. Schneider.
Joseph B. Cheshire, Jr., Raleigh, guardian ad litem for unborn children of Nancy Elizabeth Schneider and for lineal descendants of Mary Patterson Schneider not now in being.
BARNHILL, Justice.
Did Robert P. Schneider, upon the death of his mother, become seized and possessed of a transmittible one-half interest in the trust estate devised in Item 3 of the will of Samuel F. Patterson, subject only to the provisions of the trust postponing the time of full enjoyment thereof? This is the primary question posed by this appeal. Since the widow, Nancy P. Patterson, is now dead and her interest in the trust estate has terminated, we may discuss the question without reference to her or her rights under the will.
If Item 3 of the will is lifted out of its context and considered apart from the will as a whole, the language there used generates very plausible, if not persuasive argument in support of an affirmative answer. The will considered in its entirety tends to point in the other direction. So then, there is sufficient ambiguity as to the purpose and intent of the testator and the meaning of the language used by him to invoke judicial construction. Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17.
Judicial construction is guided and controlled by well-recognized and established canons of construction, some of which must be invoked here.
The discovery of the intent of the testator as expressed in his will is the dominant and controlling objective of testamentary construction, for the intent of the testator as so expressed is his will. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651; Seawell v. *582 Seawell, 233 N.C. 735, 65 S.E.2d 369; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.
In ascertaining the intent of the testator, all the provisions of the will must be examined in the light of the circumstances, including the state of the testator's family at the time the will was made. Heyer v. Bulluck, supra; Scales v. Barringer, 192 N.C. 94, 133 S.E. 410, and cases cited. The intent is to be gained from a consideration of the will in its entirety. Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Heyer v. Bulluck, supra; Brown v. Brown, 195 N.C. 315, 142 S.E. 4; Cannon v. Cannon, supra; Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613; Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625.
The intent of the testator, as expressed in the will, "taking it by its corners" is the "Polar star" guiding the Court in arriving at the proper construction of the language used in the will. Wachovia Bank Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177, 178, and cases cited.
The intention of the testator need not be declared in express terms. It is sufficient if it can be inferred from particular provisions of the will and from its general scope and import. Wachovia Bank & Trust Co. v. Miller, supra; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279. And greater regard is to be given to the dominant purpose of the testator than to the use of any particular words. Heyer v. Bulluck, supra; Wachovia Bank & Trust Co. v. Waddell, supra.
Likewise we must bear in mind the distinction between a vested and a contingent estate, for the one is transmittible while the other is not. "An estate is vested when there is either an immediate right of present enjoyment or a present fixed right of future enjoyment.' Patrick v. Beatty, 202 N.C. 454, 163 S.E. 572, 575; Curtis v. Maryland Baptist Union Assoc., supra [176 Md. 430, 5 A.2d 836, 121 A.L.R. 1516]." McQueen v. Branch Banking & Trust Co., 234 N.C. 737, 68 S.E.2d 831, 835. Conversely, when there is uncertainty as to the person or persons who are to take, the uncertainty to be resolved in a particular way or according to conditions existing at a particular time in the future, the devise is contingent. Scales v. Barringer, supra; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370; Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621.
"If there is uncertainty as to the person or persons who will be entitled to enjoy the remainder, or if a conditional element is made a part of the description of the remainder, it is contingent." Scales v. Barringer, supra. [192 N.C. 94, 133 S.E. 413.]
In craftsmanship the will leaves much to be desired. In some respects it is ineptly drawn and it lacks exactness of expression and attention to details that might be expected in a paper writing disposing of an estate of the size here involved. Yet an examination of the instrument with the controlling rules of construction in mind makes it manifest that the testator intended to (1) keep his devise well within the rule against perpetuities, (2) limit the property which, in any event that might arise, should go to the two children by his former marriage to that specifically devised in the will, and (3) restrict the trust property devised in Item 3 to his lineal descendants of the blood of his surviving widow, upon the failure of which it is to be used for charitable purposes as provided in Item 4 of the will.
The devise in trust is purposely and cautiously restricted to those of his own blood and the blood of his wife Nancy who may be able to answer the roll call. And it is evident he intended that the devise should take effect according to the state of his family with reference to the second set of children at the time the division is to be made. The representatives of any deceased child who predeceased the life tenant take one share per stirpes. They take, however, if at all, as purchasers under the will and not by inheritance, as representatives of their deceased parent.
There is no gift of the trust estate to the children and grandchildren of his daughter Mary apart from the direction that the trust shall terminate and the property shall be divided at the end of the twenty-year period. Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713.
*583 At the time the will was executed, the state of testator's family was such that there was a distinct possibility that those who are to share in the income after the death of his daughter Mary and those who may share in the final division are not identical. Only children of Mary are to receive the income pending the termination of the trust. Grandchildren are excluded by necessary implication. Yet grandchildren of the blood of the testator and his last wife are to share in the distribution, provided their ancestor predeceased Mary.
"In the event that my daughter, Mary B. Patterson shall die leaving children or grandchildren her surviving, then upon the expiration of the 20 year period succeeding her death as above provided, my estate shall be distributed equally among her children and the children of any one of her children who may have predeceased her, provided that her grandchildren shall receive only such portion as would have been received by their parent if living."
Those who are to take the corpus are designated by class rather than by name. When the gift is to a class but the time of vesting is postponed beyond the date of the termination of the preceding life estate, members of the class in esse at the time of the termination of the preceding estate are possessed of the contingent right to take. However, the class opens up to admit members of the class thereafter born, and closes ranks so as to exclude members who die, prior to the date set for the vesting of the estate granted. Neill v. Bach, 231 N.C. 391, 57 S.E.2d 385; Smyth v. McKissick, supra.
If testator's daughter Mary should die without leaving a direct descendant capable of answering the roll call as provided in the will, the trust property is not to pass by inheritance to representatives of his first set of children but is to revert to the trustees as a part of the testator's residuary estate and be devoted to charitable purposes as provided in Item 4 of the will.
While it is true the income from the trust is to be paid first to Mary and then, after her death, to such of her children as may survive, the gift is not a gift of the income generally. It is carefully limited to the twenty-year period next after the death of Mary. Hence, the line of cases represented by Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420, and Jackson v. Langley, 234 N.C. 243, 66 S.E.2d 899, is not controlling here. The will manifests an intent to pass an estate of less dignity. Mangum v. Wilson, N.C., 70 S.E.2d 19.
The intent of the testator as thus disclosed by the language used in the will under consideration compels these conclusions: (1) Robert Schneider never became seized of a vested interest in the trust estate which upon his death passed by inheritance to his heirs and distributees; (2) upon the death of his mother, he became entitled to one-half of the income from the trust estate; (3) upon his death, prior to the expiration of the twenty-year period during which the trust was to continue and prior to the date set for the final distribution of the corpus of the estate, any interest he may have had in the trust estate terminated; (4) the defendant Nancy Elizabeth Schneider is now entitled to all the income from the estate and is the only person who may be able to answer the roll call at the expiration of the trust, if she is then living; and (5) there can be no distribution of the corpus of the estate at this time.
Let it be understood, however, that we do not at this time decide (1) any right of the children of the first marriage or their representatives to take by inheritance from their half sister, Nancy Elizabeth, in the event she dies without issue, either before or after the termination of the trust, or (2) the validity or invalidity of the contingent gift over for charitable purposes contained in Item 4 of the will. These questions are not now properly before the Court. The provisions of Item 4 are now considered only as they serve to point to the intent of the testator. Specifically, paragraph 10 of the judgment, insofar as it undertakes to direct the distribution of the corpus of the trust in the event Nancy Elizabeth Schneider shall die prior to the expiration of the twenty-year period, is vacated. The courts do not enter anticipatory judgments. That question will be decided when and if it arises.
*584 The court below entered an order awarding counsel fees to the attorneys for the defendant Robert Schneider and the defendants Francis F. Patterson and Mildred Patterson Beard, to be paid out of the assets of the estate as a part of the cost of the litigation. Exceptions to this order must be sustained.
Except as otherwise provided by statute, G. S. § 6-21, attorneys' fees are not now regarded as a part of the court costs in this jurisdiction. Turner v. Boger, 126 N.C. 300, 35 S.E. 592, 49 L.R.A. 590; Ragan v. Ragan, 186 N.C. 461, 119 S.E. 882; Parker v. Mecklenburg Realty & Insurance Co., 195 N.C. 644, 143 S.E. 254; Security Finance Co. v. Hendry, 189 N.C. 549, 127 S.E. 629.
Prior to 1868 counsel fees for the successful litigant were fixed by statute and allowed as a part of the cost or expense of litigation. The Code of Civil Procedure, adopted in 1868, abolished the tax fees of attorneys and made provision for the recovery by the successful party of certain amounts which were supposed to reimburse him for his expense. C.C.P., Title XII, sees. 275, 279; Hyman v. Devereux, 65 N.C. 588. This was changed in 1870-71 and certain fixed fees for attorneys were allowed as under the former law. Bat.Rev. Ch. 105, sec. 29; Patterson v. Miller, 72 N.C. 516; Midgett v. Vann, 158 N.C. 128, 73 S.E. 801. In 1879 this was repealed, leaving no statutory provision for attorneys' fees as costs. Laws 1879, Ch. 41; Parker v. Mecklenburg Realty & Insurance Co., supra; Patrick v. Branch Banking & Trust Co., 216 N.C. 525, 5 S.E.2d 724.
Thus the nonallowance of counsel fees as a part of the costs of litigation was deliberately adopted as the policy in this State as early as 1879. That policy, as modified by the provisions of G.S. § 6-21, has prevailed in this State since that date.
The allowances may not be sustained upon the theory that they are in payment for services rendered the trust estate.
While it was necessary for the plaintiff to make Robert H. Schneider a party defendant, whether he should appear and defend was for him to decide. When he elected to employ counsel and appear and assert his claim to a part of the estate, his counsel represented him and advocated his cause. They were serving the individual and not the estate. Of course, what is here said as to Robert H. Schneider applies with equal force to the allowance made counsel for defendants Francis F. Patterson and Mildred Patterson Beard.
The judgment entered in the court below must be modified in accord with this opinion. As so modified it is affirmed.
Modified and affirmed.