Reynolds v. Safe Deposit & Trust Co. of Baltimore

201 N.C. 267

• Court: Supreme Court of North Carolina
• Decided: July 2, 1931
• Status: Published

Opinion

Olakkson, J.

Richard Joshua Reynolds, of Winston-Salem, Forsyth County, N. 0., died in August, 1918, leaving a last will and testament, codicil and nuncupative will, which said instruments were duly admitted to probate in said county in August, 1918, and recorded in office of the clerk of the Superior Court of said county in Book 8 of Wills, p. 91, etc.

At his death Richard Joshua Reynolds left surviving him his widow, Katherine Smith Reynolds and four children, Richard J. Reynolds, Mary Katherine Reynolds, Nancy Susan Reynolds and Zachary Smith Reynolds, all of the said children being minors.

Katherine Smith Reynolds subsequently married J. Edward Johnston and died in 1924, leaving, a last will and testament, which was duly admitted to probate in said Forsyth County, N. 0., and recorded in Book No. 9 of Wills, on page 19, in the office of the clerk of the Superior Court of Forsyth County, N. C.

The defendant, Safe Deposit and Trust Company of Baltimore, has entered upon the performance of the trusts prescribed in the wills of both Richard Joshua Reynolds and Katherine Smith Johnston, and is now in possession of the trust estates created by both of said wills, and is administering said estates.

Richard J. Reynolds, the eldest child and one of the legatees under item fourth of the will of Richard Joshua Reynolds and item seven of the -will of Katherine Smith Johnston, attained the age of 21 years on 4 April, 1927.

After the said Richard J. Reynolds became of age in a proceeding in the Superior Court of Forsyth County, N. C., instituted by the Safe Deposit and Trust Company of Baltimore for an interpretation of item fourth (paragraph 5) of the will of Richard Joshua Reynolds, the said Safe deposit and Trust Company of Baltimore was duly directed by the judge of the said court to pay to the said Richard J. Reynolds the sum of $50,000 per annum until he should attain the age of 28 years, and that the said Safe Deposit and Trust Company of Baltimore has paid and is now paying to the said Richard J. Reynolds, as provided in the said will as interpreted by the court in the said proceeding, the sum of $50,000 per year.

Richard J. Reynolds filed with the Safe Deposit and Trust Company of Baltimore a statement of tbe affairs of Richard J. Reynolds for the period from 4 April, 1928, to 4 April, 1929, as follows:

“Income — 4 Apbil, 1928, to 4 Apbil, 1929.

From estate Katherine S. Johnston.$ 54,473.71

From estate R. J. Reynolds. 50,000.00

From balance estate "W. R. Reynolds (sale Curtiss Field) . 783.70

From Roosevelt Field, Inc. 87,970.75

From Safe Deposit and Trust Co. (payment on $85,000.00 note) . 5,121.74

From dividends . 9,671.25

From rentals . 2,760.00

From salaries . 3,600.00

From personal checks of R. J. Reynolds. 1,200.00

Total.$215,581.15

Expenses — 4 Apbil, 1928, to 4 Apbil, 1929.

Business expense .$ 11,617.90

Personal expense . 51,596.21

Interest . 17,040.06

Taxes — income . ... 31.00

Taxes, other than income. 2,362.67

Real estate, commissions and expenses . 2,664.84

Repairs to rental property. 4.10

Total.$ 85,316.78

Total income 4 April, 1928, to 4 April, 1929 .. $215,581.15 Total expenses 4 April, 1928, to 4 April, 1929 . 85,316.78

Net profit.$130,264.37

Richard J. Reynolds demanded of the Safe Deposit and Trust Company of Baltimore, as trustee under paragraph (6) of item fourth of the will of Richard Joshua Reynolds the sum of $260,528.74 (double the amount contended by him as his net profits) in stocks of the R. J. Reynolds Tobacco Company at par, based upon the said statement, making said claim according to his contention under paragraph (6) of item fourth of the will of Richard Joshua Reynolds.

Tbe trustee was willing to allow tbe said claim except as to tbe following items of income in said statement as follows:

Estate Katherine S. Jobnston.$ 54,473.71

Estate R. J. Reynolds. 50,000.00

From estate W. R. Reynolds. 783.70

From Safe Deposit and Trust Co. 5,121.74

Total as contended by plaintiff.:.$130,264.37

Less amount as contended by defendant. 110,379.15

Total, as contended by defendant.$ 19,885.22

Tbe trustee recognized a net income for tbe period in question of $19,885.22, for wbicb $39,777.44 in stocks of tbe R. J. Reynolds Tobacco Company at par have been delivered to Richard J. Reynolds with tbe understanding that such delivery should be without prejudice to bis right to claim any further payment upon tbe basis of tbe statements.

All of tbe children of Richard Joshua Reynolds wW were living at bis death are now living, as follows :

Richard J. Reynolds (unmarried).

Mary Reynolds Babcock (husband, Chas. Babcock).

Nancy Reynolds Bagley (husband, Henry Walker Bagley).

Zachary Smith Reynolds (wife, Anne Cannon Reynolds).

That of said children, Richard J. Reynolds and Mary Reynolds Bab-cock are now of age, being more than 21 years of age, and the others are minors under the age of 21 years; that Katherine S. Johnston died in the year 1924, and that her husband J. Edward Johnston, and one son by that marriage, J. Edward Johnston, Jr., survived her.

This Court in this action is called upon to construe item 4, paragraph (6) of the will of Richard Joshua Reynolds, which is as follows:

“(6) To encourage habits of industry, thrift and- economy in my children, I hereby make the following provision for further payments to them after they reach the age of twenty-one (21) years, and before they attain the age of twenty-eight (28) years, to wit: I direct said trustee, Safe Deposit and Trust Company, annually, upon any of my children presenting to it a statement showing to said trustee’s satisfaction that he or she has made by individual effort, in any legitimate business or investment, or has saved from money, stocks or bonds owned by him or her, any money over and above all living expenses, to pay to such child, out of his or her share of my estate, if necessary to the full extent of such share, two dollars for every one dollar so made or saved. Payment will be made in cash; or, if the child entitled thereto so elects, in stocks or bonds at par, including stocks in R. J. Reynolds Tobacco Company (subject to sale restrictions as to last named stocks as shown in item fifth hereof). But, said trustee* is directed to exclude and eliminate from any annual sbaiemenb suhmiited wider this provision of my will any money made in buying and selling stoclcs, or commodities of any hind, on margin (commonly Icnown as dealing in 'futures’), or earnings of profits derived from speculation of that character. Any married daughter may avail herself of this provision of my will and may, in filing annual statements as herein required and subject to the same restrictions, include therein like earnings and .savings, over and above expenses, by her husband.” (Italics ours.)

The plaintiff introduced in part the deposition of H. H. Shelton, an attorney, who became general counsel of the R. J. Reynolds Tobacco Company on 1 January, and continued as such counsel until April, 1921.

“Q. 5. Did you have occasion about that time to confer with Mr. Richard Joshua Reynolds, at that time president of R. J. Reynolds Tobacco Company in Winston-Salem, in regard to redrafting the whole or part of his will ? Answer: I did.

Q. 6. In that connection did he present to you the original or a copy of a will executed by him in accordance with the laws of the State of North Carolina? Answer: He did present such a will to me. I think it was a copy.

Q. 7. I hand you a paper marked Exhibit A, and call your particular attention to the last paragraph on page 6, running over on page 7, and ask you if that is a copy of a paragraph in his will, when he asked you to redraft his will on or about 25 July, 1917? Answer: The paiDer you hand me, marked Exhibit A, is a copy of the will of Mr. Reynolds presented -to me, and the copy he presented to me contained the paragraph to which you call attention and which begins on page 6 with the words ‘Any further payments,’ and concludes on page 7, about the middle thereof, with the words, ‘Conditions above provided.’

Q. 9. What changes did you make in the paragraph beginning on page 6 of Exhibit A, referred to in your answer to Question No. 7? Answer: It appears that I reconstructed the paragraph referred to in my answer to Question 7, and which is a part of item fourth of Exhibit A, appearing on pages 6 and 7 thereof. The reconstructed paragraph is a part of item fourth, subparagraphed (6). The first material change appearing in Exhibit B was to declare the purpose and reasons for the remaining provisions thereof. It was to encourage habits of industry and economy that the subsequent provisions were made. The next and the important change was to rewrite the provision in Exhibit A, which reads: ‘In any legitimate business or investment, or saved from the earnings of money or stock or bonds owned by them,’ by using the language in Exhibit B, reading: Tn any legitimate business or investment, or has saved from money, stook or bonds owned by him or her.’ Another important change which probably should have first been mentioned in this answer was to use the words 'two dollars for every one dollar so made or saved,’ in lieu of the words in Exhibit A, reading 'for every one dollar made.’ The fact that this change was made is emphasized by the fact that the clause 'two dollars for every dollar so made or saved’ was italicised. In Exhibit A, the two dollar for one dollar idea was made effective in favor of any married daughter if the statement required disclosed a dollar 'made by the industry or good management of her husband.’ Whereas, in the will as drafted by me this reward was made available to a married daughter if the statement required disclosed a sum of money resulting from ‘like earnings and savings.’

Q. 10. Do you recall any instructions given to you by Mr. Reynolds or any conversations with him in connection with the paragraph on pages 6 and 7 of Exhibit A, and the drafting of paragraph 6 of item fourth in Exhibit B ? Answer: I do recall such instructions.

Q. 11. What were they? Answer: Mr. Reynolds discussed the provisions of his will, and especially the provisions contained in the paragraphs referred to with me on various occasions prior to my actually finishing the will which he executed. The will as drafted by me was drawn strictly in accordance with his instructions, and I recall very clearly that we discussed the difference between the two paragraphs mentioned and his idea was to enlarge the provisions of Exhibit A, so that the two dollar for one idea would apply to money resulting from industry and to money resulting from economy. His idea was, as he explained it often to me, to encourage his children in industry and to equally encourage them in saving their money from whatever source it came.”

The defendant, Safe Deposit and Trust Company, objected to each of the questions and answers contained in this deposition. The court sustained the objection, and plaintiff excepted as to each question and answer. We think the court below correct in sustaining the objections.

This matter has been decided adversely to plaintiff’s contention over a century ago. In Reeves v. Reeves, 16 N. C., at p. 389, decided June, 1830, Ruffin, J., speaking to the subject, said: “Then as to the parol evidence and answer of the administrator, to vary this construction; it is impossible that the idea should be admitted for a moment. It would be to upset all wills by the loosest proof. . . . But it would be extremely dangerous, entirely too much so, to say, that the testator did not devise, because, in law, the paper would pass a larger estate, and more property, than witnesses supposed the maker of it meant. The meaning of tbe testator is to be judged of by bis written words; and tbey must stand, unless it be shown tbat be was imposed on, and did not know tbey were in bis will; or knowing tbat tbey were there, tbat be bad been induced by undue influence to execute it against bis own wishes; which goes on quite a different ground, namely, weakness.”

“Where tbe language is clear as to tbe intent of tbe testator, and there is no latent ambiguity, there can be no extrinsic proof. In McDaniel v. King, 90 N. C., 602, Merrimon, C. J., said: 'If a will is sufficiently distinct and plain in its meaning as to enable tbe Court to say tbat a particular person is to take, and tbat a particular thing passes, tbat is sufficient, and it must be construed upon its face without resorting to extraneous methods of explanation to give it point. Any other rule would place it practically within tbe power of interested persons to malee a testator’s will, so as to meet tbe convenience and wishes of those who might claim to take under it.’ Williams v. Bailey, 178 N. C., 632.” Kidder v. Bailey, 187 N. C., at p. 508-9; Watkins v. Flora, 30 N. C., 374; Stowe v. Davis, 32 N. C., 431; Hester v. Hester, 37 N. C., 330; Deaf Institute v. Norwood, 45 N. C., 65; Hathaway v. Harris, 84 N. C., 96; Taylor v. Maris, 90 N. C., 619; Patterson v. Wilson, 101 N. C., 594; In re Shelton's Will, 143 N. C., 218.

In Jarmón on Wills, Vol. 1, cb. 15, sec. 1, we find: “As tbe law requires wills both of real and personal estate (with an inconsiderable exception) to be in writing, it cannot, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to, or explain tbe contents of such will; and tbe principle of this rule evidently demands an inflexible adherence to it, even where tbe consequence is tbe partial or total failure of tbe testator’s intended disposition; for it would have been of little avail to* require tbat a will aib origine, should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when tbe written instrument failed to make a full and explicit disclosure of bis scheme of disposition, its deficiencies might be supplied, or its inaccuracies corrected, from extrinsic sources. No principle connected with tbe law of wills is more firmly established or more familiar in its application than this; and it seems to have been acted upon by tbe judges, as well of early as of later times, with a cordiality and steadiness which show bow entirely it coincided with their own views. Indeed, it was rather to have been expected tbat judicial experience should have tbe effect of impressing a strong conviction of tbe evil of offering temptation to perjury. There are numerous cases in which tbe courts have refused to admit parol evidence to contradict tbe express terms of a will. But where a will contains an erroneous recital or statement of fact, parol evidence is sometimes admissible to contradict it.”

The cases relied on by plaintiff appellant, Wooten v. Hobbs, 110 N. C., at p. 214; Cecil v. Cecil, 173 N. C., 410, and Brown v. Brown, 195 N. C., 315, are not inconsistent to the position here taken.

In the Brown case, supra, the testator added codicils to his will, and it was held that to effectuate the intent of the testator, as expressed by the entire writing, the will will be construed with the codicils.

The court below, in the judgment construing item 4, paragraph (6), held: “That by true construction of the will of said testator, Richard Joshua Reynolds, the items to' be included in the statement furnished to the trustee in any year, as the basis for showing the amount made or saved by any of his children between 21 and 28 years of age, over and above all living expenses during such year, and from the total of which items the entire living expenses are to be deducted, should include only net earnings made by individual effort in any legitimate business or investment, and income saved from money, stocks or bonds or other productive property owned by such child, including the earnings and savings, as aforesaid, of the husband of any married daughter; and should not include amounts received by such child during such year, as either income or principal, from the share held in trust for such child under said will, or income or principal so received by such child from the trust created by the will of the mother of said children, or received during such year as next of kin or devisee or legatee of any other relative or other person, or gifts received from any other person without consideration; the annual statements to- be filed by the children of the testator, Richard Joshua Reynolds, are to be filed as of the anniversary of the birth of the child filing the statement, and the correctness of the statement filed is to be determined solely by the trustee under the will, provided such determination is in good faith and is not arbitrary.” We see no error in this construction of the will.

The construction of paragraph (6) of item fourth set forth in the judgment appealed from, is correct, and that the statements to he filed with the trustee in pursuance of said paragraph should include only:

(1) Net earnings derived from individual efforts of the applicant, in any legitimate business or investment, and

(2) Income saved from money, stocks, bonds or other productive property owned by such child; and should not include, as contended by the appellant, either

(1) Income received from this trust under his father’s will, (2) income received from the trust under his mother’s will, both derived from property not “owned” by him (3) or amounts received, in money or property, from the estates of other relatives, nor as a gift neither earned nor derived from property owned by the appellant.

Tbe appellant’s main contention is tbat any money or property received in any way during tbe course of tbe year, in so far as it is not lost or spent in tbe course of tbe year, is “saved” witbin tbe meaning of tbis paragraph.

Tbe paramount idea in tbe mind of tbe testator, Richard Joshua Reynolds, in item 4, paragraph (6), was “To encourage habits of industry, thrift and economy in my children,” etc. No doubt bis great fortune was accumulated in tbis way, and be wanted to perpetuate tbis attitude in bis children, those tbat came after him. A laudable purpose and tbe very keystone of success in any business enterprise. Then be goes on and explains bow tbis must be done, not by buying and selling stocks, or commodities of any kind, on margin (commonly known as dealing in futures) or earnings or profits derived from speculation of tbat character. Tbis successful business man no doubt having seen tbe tragedy and wreckage in bis long and successful business career of men and women dealing in futures and speculation on margin, condemns it by not allowing any money made in tbat way to be included in what bis idea constituted tbe encouragement in bis children of habits of “industry, thrift and economy.” He was careful to define what bis children should be rewarded for “individual efforts, in any legitimate business or investment or bad saved from money, stocksi or bonds owned by him or her any money over and above all living expenses.” And then such child should have "two dollars for every one dollar so■ made or sawed.”

We cannot see bow tbe amount received from bis mother’s estate, $54,473.71, or from bis uncle’s estate $783.70, or bis allowance under his father’s estate $50,000, or refund of commissions from Safe Deposit and Trust Company of Baltimore, tbe trustee, under bis father’s will, $5,121.74, were such funds from “individual effort . . . saved from money, stocks or bonds owned by him or her.” These items were not “saved from money, stocks or bonds owned by him or her,” but came to him by inheritance from bis mother’s and uncle’s estates, and provision under bis father’s will, and a refund of commissions from defendant Safe Deposit and Trust Company of Baltimore.

Many meanings are given to tbe word “save,” but we think tbe following is applicable here, taken from the Century Dictionary: “(7) To lay by, little by.little, and as tbe result of frugal care; lay up; board; as, be has saved quite a good sum out of bis scanty earnings.” Tbis is ordinarily tbe generally accepted meaning and well understood among business men, and we think tbis was tbe testator’s meaning when be used tbe word “saved” or “so made or saved.”

Tbe construction suggested by tbe trustee and adopted by tbe lower court in tbe judgment aqipealed from, is not only strictly in accordance with the letter of the clause in question, but attributes to tbe testator the rational intent of rewarding a child to the extent that such a child could show that, from his own independent efforts and means, he has earned, made, and saved during the year a surplus over and above his living expenses. Any attempt to give to this clause a wider construction and effect than its literal meaning, necessarily leads to results which we think are totally contrary to- the expressed design, purpose and object of the entire clause or provision and the intention of the testator.

Wo see no reason to go into a further analysis of the language of this part of the will of Richard Joshua Reynolds. The testimony of the attorney, H. H. Shelton, can have no bearing on this controversy.

In McIver v. McKinney, 184 N. C., at p. 396, citing numerous authorities, the following observation is made: “The question is not what the testator intended to express, but what he actually expressed in his will, when all its provisions are considered and construed in their entirety.”

This successful business man condemned dealing in futures and speculation of that character — buying and selling stocks or commodities of any kind on a margin, so also it is outlawed by the General Assembly of this State. In construing C. S., 2144, this Court said, in Welles & Co. v. Satterfield, 190 N. C., at p. 95: “The statute in this State makes contracts for ‘futures’ utterly null and void. The statute clearly defines what are ‘future’ contracts; ‘Whereby the parties thereto contemplate and intend no real transaction as to the article or thing agreed to be delivered.’ The Legislature in its wisdom has seen fit to pass a drastic act to stop this kind of gambling or vicious contracts, no- doubt fully aware of the wreckage of the human family. The mischief the act is intended to prevent is plain — that no one should get something for nothing, or nothing for something.” See Public Laws of N. C., 1931, ch. 236.

The record discloses: “Mary R. Babcock, a sister of the plaintiff, and entitled to file statements in the same manner as the plaintiff, appears as a defendant in this case. Her interest, however, is identical with that of the plaintiff, and she excepted to the judgment signed by the court for the purpose of attacking the construction of the will made by the court jointly with the plaintiff. For that reason no separate case on appeal was made, the interest of the appealing parties being identical.”

For the reasons stated, the appeal of Mary R. Babcock will be governed by the law as herein stated, applying to plaintiff’s appeal.

In the judgment of the court below we find, in law, no error. The judgment is

Affirmed.