Kerhulas v. Trakas

350 S.E.2d 169, 83 N.C. App. 414, 1986 N.C. App. LEXIS 2723

• Court: Court of Appeals of North Carolina
• Decided: November 25, 1986
• Docket: No. 8627SC539
• Status: Published

Opinion

PHILLIPS, Judge.

The defendants’ appeal does not directly contest the main thing decided by the trial judge — that the notes of LPT Enterprises were not part of that concern’s capital structure and thus were not left to trustees for Jean M. Mentavlos by the above provision. Thus, that part of the judgment appealed from is presumed to be correct, London v. London, 271 N.C. 568, 157 S.E. 2d 90 (1967); it is also correct both in fact and law. The notes do not represent anything that the partnership owned and could distribute to the partners; they only represent a debt that the partnership owed the testatrix and is obligated to pay, independent of its obligations to hold, manage and distribute upon liquidation the capital contributed by the partners. In the absence of special provisions so indicating, a bequest of corporate stock does not carry with it debts that the corporation owes a particular stockholder, 96 C.J.S. Wills Sec. 780, p. 192 (1957); and nothing in the provision involved suggests that the bequest of stock included the notes involved. Other courts have held to the same effect under similar circumstances. Balzebre v. The First National Bank of Miami, 222 So. 2d 49 (Fla. 1969); Major v. Major, 106 Ind. App. 90, 15 N.E. 2d 754 (1938).

What the defendants assign as error are (1) the court’s failure to remove the plaintiff as co-executor because her interest in the specific bequest of LPT stock conflicted with that of Jean M. Mentavlos; (2) the court’s failure to dismiss the action because the plaintiff had stipulated that the defendant co-executor could exercise the discretionary powers devised in the codicil; and (3) the court’s failure to determine that the codicil gave the co-executors the discretionary authority to distribute the notes as part of the specific bequest made for the benefit of Jean P. Mentavlos. None of these contentions have merit. Any interested party under a will may petition for a declaratory judgment as to its meaning and effect, G.S. 1-254, and that Pan P. Kerhulas’ interest is adverse to that of her sister does not deprive her of the right to have the will’s meaning judicially determined. Furthermore, the plaintiffs conflicting interest has done no harm to the defendants because instead of determining as a co-executor that the notes are not covered by the special bequest she stood aside and stipulated that the discretionary powers granted by that provision could be exercised by the defendant co-executor. But contrary to the defendants’ argument the stipulation was not unconditional. By its express terms the stipulation extends only to the extent that discretion legally exists and the court correctly ruled that the discretion granted by the codicil to the co-executors does not extend to the notes involved. Though both parties cite many court decisions on the discretionary powers of executors and trustees it is sufficient to note that the testamentary provision involved expressly limits the discretion of the co-executors to determining and distributing the “number of my shares of the stock of said company or of its successor . . . [that are] the equivalent of 565 shares of such stock owned” (emphasis supplied) when the will was written. Where the words employed by a testator are plain they must be taken to mean what they say. Elmore v. Austin, 232 N.C. 13, 59 S.E. 2d 205 (1950). The testator granted no discretion to distribute notes, cash, or other articles of value to the trustees for Jean P. Mentavlos under any circumstances. The discretionary grant extended only to shares of stock in the specific corporation named or in the enterprise that succeeded it, and all the shares or interest that the testatrix had in either enterprise at her death has admittedly passed to the trustees already.

Affirmed.

Judges Webb and Johnson concur.