Cannon v. . Cannon

Seawell, J.,

dissenting: First, as to the form of the main opinion. I do not see that there is any appeal before us from the judgment rendered by Bobbitt, J., at August Term, 1944, or that, as a matter of law, there could be. At that term an unappealable interlocutory order referring the finding of the market value of the shares under the judgment of the court was made by Judge Bobbitt, to which the parties made exception, thus preserving the right of review upon the determination of the cause. This review is properly had under the appeal from Judge Gwyn now under consideration, and not upon any appeal from any judgment of Judge Bobbitt. The exceptions made do not preserve the right of review in so far as that judgment as appealable, and in this respect no appeal was made. See pp. 70 to 73 of the record, and the entries on p. 73.

I disagree with the majority opinion in its holding that the securities or other property upon which the annuities set up in Mrs. Cannon’s will are to be computed should be valued as of the date of her death. I may assign three reasons for my dissent: First, because Mrs. Cannon, in plain and direct language (paragraph Gr), says that they are to be appraised at the market value obtainable at the time of their setting apart by the trustees, which setting apart could not take place and was not expected to take place until the termination of the prior administration in which the title to the property, as well as its possession, was in the hands of the executors; and second, because the attempted rationalization by which the will is held to mean otherwise is uninvited by any ambiguity or contradiction in its terms and is inconsistent with facts and conditions known to Mrs. Cannon, and in contemplation of which she is presumed to have acted; and third, because it is physically impossible to apply the rule adopted by the Court to all of the annuities set up under the will; and uniformity in that regard is an essential test of the rule.

I think we may concede without citation of supporting cases, of which there must be many thousands, that the purpose of construing a will (where construction is necessary) is, to find the intent of the testator. *622We are perfectly agreed that this must be found from the whole will— from its “four corners.” The cliches and formulas by which this never-doubted principle is expressed are so numerous and so frequently cited that no lawyer now grasps a will by its four corners without facing north.

But these general expressions are only peripherically concerned, if at all, with the point at issue here. After conceding them to be impeccable, we inquire: What from then on ?

1. We come to what Mrs. Cannon really said about the market value which she chose to be set upon the shares on which the annuities are to be computed. Clause Gr:

“Whenever an annuity of four and one-half per centum (4%%) of a share or part of the trust estate is granted under the terms and provisions of this my Will, the said percentage shall be that percentage (i.e., 4%%) of the principal of the share or part set aside in trust, computed at the market value thereof at the date of the setting aside of said share or part.”

And not “as of” any other date that would either raise or lower the level of income she chose to provide for the objects of her bounty. And this is all that she said anywhere in the will about the date of the market value to be followed in fixing the value of the shares.

Also, there is no other specific provision of the will, and I think no general intent within its four corners, that contradicts or casts any doubt upon this clearly expressed intention. Against this expression of intent, the Court should not be astute to find conjectural ambiguities or a speculation or merely any plausible intent against an express declaration to the contrary. Freeman v. Freeman, 141 N. C., 97, 53 S. E., 620; Faison v. Middleton, 171 N. C., 170, 88 S. E., 141; Baker v. Edge, 174 N. C., 100, 93 S. E., 462; Dicks v. Young, 181 N. C., 448, 107 S. E., 220.

The “setting aside” was not the act of the law nor by virtue of any self-executing or automatic provision of the will. It must occur, if at all, by the intelligent agency set up under the will — the trustees appointed under it. Mrs. Cannon knew that these trustees could not perform that duty and were not expected to do so until the prior administration had ended and the quantity and character of the property upon which the annuities are computed were ascertained and the property turned over to the trustees. By the same reasoning, no computation of any sort could be made until that time — -a period which under the law was supposed to extend for two years at least, unless under special circumstances, and which actually lasted nearly three years. This was an active administration in which not only the possession, but the title of the property was in the hands of the executors, and out of it had to be paid debts, taxes, and costs of administration, as well as special legacies and bequests, before it could be ascertained what property, either in kind or amount, *623was left to be delivered to the trustees and by them set up into shares for the annuitants.

2. The theory of valuation as of the date of testatrix’ death advanced in the main opinion is variously'.based on the following arguments: That it is conceded by the parties and found in the judgment that the accrual of the annuities took place at the death of the testatrix, and valuation as of that date must necessarily follow; that the language used in the will is identical to that used in the New York Trust, which figured in the case upon our former appeal, and the judgment of the New York Court and the language employed in the New York Trust afford some argument in favor of the position tak.en in the main opinion; that the proper construction of paragraph “Gr” carries us back to the date of death of the testatrix for valuation of the shares.

My views regarding the New York case and the trust involved in that suit are fully stated in Cannon v. Cannon, 223 N. C., 664, 28 S. E. (2d), 240—the former appeal — and I must be content with what is said there. I need only say now that the circumstances surrounding the donor there and the testatrix here are so radically different as to make any worthwhile comparison impossible.

There is no important significance to be attached to the fact that the accrual of the annuities occurs at the death of the testatrix. Whether that be a matter of common consent amongst the parties or derived from application of correct principles of law makes no difference. There is no necessity in fact and no compulsion of law that the valuation of the shares should be as of that date. Mrs. Cannon knew that the setting apart of the shares which she had in mind could not take place at that time, but must take place, if at all, after the .property was turned over to the trustees. She thought that an appropriate time at which to fix the current market value, and her choice was reasonable. At any rate, the property was hers, and her right to fix such a time cannot be questioned. She had as much right to see that the shares were enhanced by adding the ad interim increment of value in favor of the first objects of her bounty as she had to add to the principal of each share the surplus earning over the 4%% in behalf of later annuitants. The suggestion of (a general fund set up at death out of which the annuities were created and paid is contrary to the will. Taking the first annuitants as typical, these annuitants each did not have an undivided one-fifth interest in the income of a general trust fund provided for their benefit on death. There was no such fund. The annuity was paid out of earnings of a specific share allotted to each, presumably in kind, to be supplemented when necessary from the principal of that share to keep up the annuity income level.

The companion theory that the law effects a division or constructively regards a division as taking place upon the death of the testatrix is *624purely conceptional, inadequate to administrative necessities, and not likely to have any bearing on the intent of the testatrix, who wished to have her property handled by intelligent agents and purposed to give them specific directives in its management. The “setting apart”- contemplated in the will was an actual division into shares, requiring the exercise of business judgment. I do not understand it to be denied by any party that such a division did not and could not take place until the property was in the hands of the trustees. I think it is enough for us to know that the testatrix had in mind an actual division into shares and a “setting apart” by the trustees, and of her own will and purpose required the market price current at that time to be applied in valuing them.

3. The annuity scheme set up in the will is proliferating, extending to grandchildren who contingently take by subdivision of the shares of ancestors or other annuitants; and in terms paragraph “G” applies to this situation also. The process of succession may take many years to run its course before this subdivision takes place. By that time the respective shares may have greatly diminished in value by consumption of the principal in supplementing the first annuitant’s income, or vastly increased by addition of the surplus earning above the four and one-half per cent. Changes either way may have occurred through exercise of the power of investment and reinvestment given the trustees under the will, and in that way the form, nature, character of the component property changes, with complete destruction of identity. The rule adopted by the majority — freezing the application of market values “as of” the date of testatrix’ death — will then have no significance. Upon the test of its universality, the rule fails — and yét paragraph “G” purports to set up a rule, and the only rule, applicable to all the annuities set up in the will, wherever any annuity is granted under its terms. Frankly, Mrs. Cannon’s outlook seems to be broader in its horizon than that we are about to take.

In this will Mrs. Cannon showed every intention to meet the circumstances surrounding her at the time the will was made, and in so doing to fix a level of income for her children, the first annuitants and first objects of her bounty, which she thought reasonable. In doing so, she made necessary the application of a current market value for the properties constituting the respective shares, which happens to be higher than that contended for by certain of the appellants. That level ought to stand. The same rule should apply had it been lower.

I concur in so much of the opinion that holds that the actual determination of the market value on 16 September, 1941, could not be made by the Court or its referee. The testatrix reposed that duty in men of large experience and unquestioned probity, and the power is nondelegable.

*625I also concur in tbe bolding tbat tbe blockage rule should not be applied in valuing tbe securities composing tbe trust. Tbe will does not require tbeir sale in any sueb way, and it would be avoided by prudent business men.

With tbe modifications bere suggested, tbe judgment should be affirmed.

BaeNhill, J., concurs in this dissent. DeviN, J., is of opinion tbat tbe language of Section G requires computing market value of shares at date they are set apart.