Wachovia Bank & Trust Co. v. Robertson

192 S.E.2d 848, 16 N.C. App. 484, 1972 N.C. App. LEXIS 1745
CourtCourt of Appeals of North Carolina
DecidedNovember 22, 1972
DocketNo. 7228SC633
StatusPublished

This text of 192 S.E.2d 848 (Wachovia Bank & Trust Co. v. Robertson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wachovia Bank & Trust Co. v. Robertson, 192 S.E.2d 848, 16 N.C. App. 484, 1972 N.C. App. LEXIS 1745 (N.C. Ct. App. 1972).

Opinion

MOERIS, Judge.

Hope T. Robertson died on 19 September 1958, leaving a last will and testament which was duly admitted to probate by the Clerk of the Superior Court of Buncombe County. The estate was fully administered and closed by order of the Clerk of Superior Court on 30 August 1962. By her will, testatrix created two trusts. One was denominated “The Hope T. Norburn Fund” and the other, “The Logan T. Robertson Fund.” Petitioner was appointed trustee of “The Logan T. Robertson Fund” and qualified as trustee on 31 July 1962. Since that date, petitioner has continued to act as trustee of this fund. The trustee is presently holding cash and other property, the combined value of which is in excess of $1,300,000.

In Item IV of her will, testatrix stated that she and others had, at various times, made gifts of the common stock of Champion Paper and Fibre Company to her grandchildren (children of Hope T. Norburn, children of Logan T. Robertson, and children of Reuben B. Robertson, Jr.). The number of shares of such stock owned by each grandchild was listed for the stated [486]*486purpose of taking this stock ownership into account in achieving equality among the children, collectively, of her three children, and her executor was instructed to rely on that list of holdings in making distribution to the funds set up for her children. The distribution for Reuben T. Robinson, Jr., was to be given to the Fifth Third Union Trust Company, Cincinnati, Ohio, as trustee under a trust she had already established.

By section 1 of Item IV, testatrix established The Hope T. Norburn Fund and provided that one-half the income therefrom should be paid to Hope T. Norburn. The balance of the net income is to be paid to the same persons as that half of the net income of the Logan Robertson Fund not paid to Hope T. Norburn. The trustee was also directed to invade the corpus if the income provided for her under this Fund, The Logan Robertson Fund, and her income from other sources shoúld be insufficient to provide liberally for her comfort, maintenance, travel and the education of her children, or enable her to meet any emergency which might arise affecting her or any member of her family. Additionally, with the written approval of Hope Norburn, the trustee may make available to any of her children amounts of principal for the purpose of purchasing a home, investing in a business, etc., as an advancement against the child’s eventual share. The testatrix then specifically provided that the fund should be divided into separate shares for the benefit of the children of Hope T. Norburn at the death of Hope T. Norburn: “Upon the death of my daughter, Hope T. Norburn, if she survives1 me, or upon my death if she does not, in accordance with my desires with respect to the equalization of the shares my grandchildren will eventually receive as here-inabove expressed, I direct that my Trustee divide the Hope T. Norburn Fund into separate shares of equal value so that there shall be one such share for each such child of Hope T. Norburn then living and one such share for the living issue collectively of each child of Hope T. Norburn then deceased, and that thereupon the Trustee shall charge each such child’s or collective issue’s share with the amount of any gift or gifts of the common stock of The Champion Paper and Fibre Company made to such child or to the parent of such collective issue, so that each such child and the living issue collectively of any such deceased child, when the appraised value of his, her, or their separate shares of the trust estate, if any, is added to the appraised value of his or her gift or the gift of such collective issue’s parent, if any, shall share approximately equally.”

[487]*487With respect to The Logan T. Robertson Fund (established by section 2 of Item IV), however, testatrix made entirely different provisions. As to that fund, she provided:

“In accordance with my desires with respect to the equalizing of the shares my grandchildren will eventually receive, as hereinabove expressed, I direct that my Trustee divide the Logan T. Robertson Fund into separate shares of equal value so that there shall be one such share for each child of Logan T. Robertson then living and one such share for the living issue collectively of each child of Logan T. Robertson then deceased, and that thereupon the Trustee shall charge each such child’s or collective issue’s share with the amount of any gift or gifts of the common stock of The Champion Paper and Fibre Company made to such child or to the parent of such collective issue, so that each such child and the living issue collectively of any such deceased child, when the appraised value of his, her or their separate shares in the trust estate, if any, is added to the appraised value of his or her gift, or the gift of such collective issue’s parent, if any, shall share approximately equally.”

Testatrix further provided that if her son Logan T. Robertson were living at her death, the various funds established by this item of her will should be administered in accordance with the following directions: Since her son Logan T. Robertson has income from other sources sufficient to meet his commitments and maintain his standard of living, the income of the funds should be used by the trustee to provide adequately for the maintenance, education, travel, and emergency requirements of each beneficiary, the trustee to consult testatrix’s daughter-in-law, Elizabeth R. Robertson (then wife of Logan T.), and give due weight to her suggestions. However, should Logan’s income drop to a point which would not enable him to maintain his then standard of living, the provisions in favor of his children should be considered subordinate and postponed to his requirements, the trustee being authorized to invade corpus for this purpose. At the death of Logan, the funds are to be administered by the trustee for the benefit of each fund’s beneficiary or beneficiaries to final termination. Testatrix further provided that, “anything to the contrary contained in this Section 2 of this Item IV notwithstanding, if my daughter Hope T. Norburn survives me, the Trustee shall pay to her in convenient periodical installments [488]*488throughout each year, one-half of the net income of all the funds comprising the Logan T. Robertson fund, as originally set apart so long as she may live.”

Hope T. Norburn, Reuben Robertson, Jr., and Logan T. Robertson all survived testatrix. At the time of the death of testatrix, Logan T. Robertson had three children; Laura Lee Safford, born 14 February 1940; Lillian Robertson Shinnick, born 4 January 1944; and Logan T. Robertson, Jr., born 6 June 1946. Subsequent to the death of testatrix, Logan T. Robertson and his wife, Elizabeth R. Robertson, were divorced. On 13 September 1966, Logan T. Robertson was married to Mary Mesnard Robertson, and to this marriage Amerette Robertson was born on 16 August 1967.

The court found facts and concluded that the bequest to the children of Hope T. Norburn was a bequest to them as a class, the class to close at the death of Hope T. Norburn. We agree with this conclusion, and no question is raised on this appeal with respect thereto.

The court also concluded that the bequest to the children of Logan T. Robertson was a bequest to them as a class. We agree with this conclusion.

The court’s conclusion No. 8 is as follows:

“That the bequest of the trust estate, known of as the Logan T. Robertson Fund to the children of Logan T. Robertson vested in the said children of Logan T. Robertson living at the death of the said Hope T.

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Bluebook (online)
192 S.E.2d 848, 16 N.C. App. 484, 1972 N.C. App. LEXIS 1745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachovia-bank-trust-co-v-robertson-ncctapp-1972.