19 S.E. 375 | N.C. | 1894
Thomas J. Sumner devised to the defendant, Julian E. Sumner, in trust for plaintiff one undivided third part of the land upon which he resided in Rowan County, to have and to hold to her and her heirs forever; and also bequeathed stock in the Charleston (S.C.) Mining and Manufacturing Co. of the value of $7,500 to said defendant "in trust for my sister, Ellen S. McKenzie." The feme plaintiff in her complaint alleged that the trust so created was a naked, dry or passive trust and insisted that she was entitled to a transfer of the property to her.
The defendant denied the conclusions of law as to such trust.
His Honor, upon agreement of the parties, found the facts as follows:
1. That plaintiff, Ellen S. McKenzie, is the wife of C. H. McKenzie, who was insolvent at the date of the will, and has been ever since; that the said plaintiff, Ellen S. McKenzie, at the time of the making of the will of Thomas J. Sumner, deceased, was and now is possessed of a large and valuable separate estate.
2. That there was no agreement between plaintiff and the defendant that he should retain five per cent commissions upon the dividends he collected upon the stock which he held as trustee for the said Ellen S. McKenzie under the said will.
3. That the executors of Thomas J. Sumner filed a final settlement of his estate on 31 March, 1893, showing a balance in their hands of $9,574.63, and in said settlement they were allowed full commissions, amounting to some $1,100, and that on 18 July, 1893, they filed what is called a supplemental final settlement, in which said executors charged two and one-half per cent commission on ninety (90) shares of the stock which was bequeathed in the will of their said testator (427) to the defendant in trust for the different persons named therein, which was not audited and approved by the clerk. *272
Upon these facts and the facts not denied in the pleadings his Honor held, as the right of the feme plaintiff to the property bequeathed in said will to the defendant in trust for her is absolute, there being no ulterior limitation and no continuing duty to be performed by said trustee, and no provision in the said will for him to exercise acts of government over said property, she having the entire beneficial interest, both in the income of the property and in the property itself, that the property devised and bequeathed to defendant, in trust for her, is but a naked, dry or passive trust; that she is entitled to a decree to have the legal estate in said property conveyed to her and the trust terminated. His Honor refused to allow two and one-half (2
We do not deem it necessary to enter into an elaborate discussion of the subject, but will simply refer to the following authorities, which, although perhaps not exactly in point, fully sustain upon principle the ruling of His Honor. Turnage v. Green,
We will add the following extract from Lewin, Trusts. 18: "The simple trust is where property is vested in one person upon trust for another, and the nature of the trust, not being prescribed by the settler (and such is the case here), is left to the construction of (429) law. In this case the cestui que trust has jus habendi, or the right to be put into actual possession of the property, and jus disponendi, or the right to call upon the trustee to execute conveyances of the legal estate as the cestui que trust directs." This is so clearly a simple trust that under our decisions the property, prior to the present Constitution, would have belonged to the husband. Ashcraft v. Little,
We have examined the authorities cited by the intelligent counsel for the appellant, but they do not satisfy us that the judgment below was erroneous. The judgment in all respects is
Affirmed.
Cited: Perkins v. Brinkley,
