Atkins v. Kron

• Decision Date: 30 June 1848
• Citation: 40 N.C. 207,5 Ired.Eq. 207
• Court: North Carolina Supreme Court
• Parties: JAON C. ATKINS et al. v. FRANCIS J. KRON et al.

5 Ired.Eq. 207

40 N.C. 207

JAON C. ATKINS et al.

v.FRANCIS J. KRON et al.

Supreme Court of North Carolina.

June Term, 1848.

Aliens cannot hold land, but the sovereign may take it; and a trust of land for an alien cannot beenforced by the alienee, but may be by the sovereign in equity.

It is the nature of a trust to be subject in equity to the same rules, as to its acquisition and alienation and the succession to it, as the legal estate is. Hence those persons only, who may purchase and hold the legal estate, may purchase and hold the equitable.

When the law separates real and personal estate, which a testator had given together to the same persons, subject to charges, and then gives one portion of the property to one set of persons and the other portion to another set, it must in like manner apportion the charges. The fund and the incumbrances ought to go together.

This was a petition, by some of the defendants, to rehear a decree made in this cause, by this Court, at December Term, 1841. See 2 Ire. Eq. 58, 423.

Strange, for the petitioners .

Winston and J. H. Bryan, contra .

RUFFIN, C. J.

This cause was heretofore heard and a decree made, as reported, 2 Ired Eq. 58, & 423; and it has been now reheard upon the petition of the defendants, the Forestiers, the grand-children of the testator's sister Quenet, to have that part of the decree reversed, by which it was declared, that, by reason of their alienage, they could not take the real estate under the devise to the plaintiff in trust for them.

The provisions in the will, on which the question arises, are these. After giving a number of pecuniary legacies and annuities, the testator says: “I give the balance or residue of my property to my executor in trust for the benefit of my sister Quenet's grand-children by the name of Forestier, to be paid to any one of them who should apply for the same, subject, however, to the payment of the legacies made in this will, and, moreover, obligatory on them to the payment of $100 yearly to their grandmother Quenet during her life, and after her decease, the same sum of $100 to be paid to their own mother yearly, also during her life. But should no one of my sister Quenet's grand-children, nor any one, duly authorised to receive the above property in their behalf, apply within two years from the time of my decease, then the above property to revert unto Mary C. Kron's children, and be distributed equally amongst them, subject, however, to the legacies herein mentioned. By subsequent clauses the testator gave to his wife a child's part of his personal estate, and directs how her share of his slaves shall be allotted, and then he adds: “I wish that all my perishable property be sold to the highest bidder as usual, at nine months credit. I wish that my lands be leased or rented out to the best advantage, and also that my negroes, my wife's share excepted, should be hired out to the highest bidder as usual in such cases, except such as are hereafter mentioned; and I wish that the ready cash, which I may have at my decease and shall remain after the legacies are paid, together with all the moneys arising from the renting of the lands and hiring of the negroes and the collection of the notes and money due me, should be lent out on interest to responsible people giving bond and approved security for the payment thereof.” Then follows a particuular provision respecting one of his negroes, named David, and his family, that they should live together on a certain piece of his land and support themselves there until the children of Charity, one of David's daughters, should attain the age of 21, and then that Charity's children be returned to the common stock, as each of them may attain that age, but that David and his wife should remain in possession of that land during their lives.

That part of the decree, which the petition brings under review, was founded on two propositions, that aliens cannot hold land, but that the sovereign may take it; and that a trust of land for an alien stands upon the same footing, and cannot be enforced by the alien, but may be by the sovereign in equity. Each position was considered at the time so firmly settled as to be indisputable, and in fact neither was disputed; so that it was not deemed necessary to cite an authority in support of them. The question, whether the aliens can take benefit by this devise, has now, been fully argued; and the Court has attentively considered the whole subject; but without being able to reach a result different from that declared in the decree.

It is said, that the intention of the testator was, that his land should be sold and the proceeds go to the alien donees; and, if that be not so, that at all events the law should leave it to the cestui que trust to elect, to have it sold and take the proceeds, which would avoid any violation of the policy, which excludes aliens from real estate.

But it is clear, that the trust is not of the special nature insisted on, for a sale of the land and payment of the money to these parties, but that the devise is simply a devise of the land to the executor in trust, generally, for the grand-children of Mrs. Quenet. Had those persons been citizens, no one would have thought, that the trust was to make a sale without the orders of the cestui que trust; and we think it clear, that a purchaser from the executor would not have a good title against the Forestiers, without their concurrence in the sale. Some stress was laid in the argnment on the expression “to be paid to any one of them,” as denoting the intention to sell. But that is not sufficient. The testator was himself a native of France, and obviously did not understand the English idiom; and it is plain that he used the term ““paid” inaccurately. For it is the residue of “my property,” which is to be “““paid,” according to the grammatical construction; in which sense that word cannot properly be used. The testator meant by those words only to express the intention; that, though the gift was to all Mrs. Quenet's grand-children, it might “be paid to any one of them.” or that any one of them, or, as afterwards more fully expressed, any one else duly authorised, might “receive the above property in their behalf.” There was no intention by the will to convert the real estate. So far from it, the expression just mentioned, “receive the above property,” shews that the trust was of the corpus specifically. Besides, while the testator is so particular as to direct the terms of a sale of the most unimportant perishable part of his estate, he gives no direction about the sale of any part of his land; but, on the contrary, he orders that certain negroes should live on one tract of the land during their lives, for the benefit of the devisees and legatees, and that the other land should be leased by the executor, and the rents invested in securities bearing interest, until, as we suppose, it should be ascertained, who, under the contingencies in the will, would become entitled to the estates. The trust, then is not one for conversion, but is merely the common one of a devise of land to one person to hold it, as land, in trust for another. Upon the death of a cestui que trust, undoubtedly the right would descend to his heir, and not go to his executor. Thus viewed, the Court holds, that the aliens could not hold under the devise.

It cannot be disputed, that an alien cannot take land by act of law; or, though he may take by purchase, that he cannot hold land against the sovereign, who may take it upon office found. Co. Lit. 2 v. It is the nature of a trust, to be subject in equity to the same rules, as to its acquisition and alienation and the succession to it, as the legal estate is. Hence, on the principle of equitas sequitur legem, those persons only, who may purchase and hold the legal estate, may purchase and hold the equitable. Lewin on Trusts, 105. And in respect to an alien, Chief Baron GILBERT lays it down as clear law, that he cannot compel the feoffee to uses to execute a use to him He gives as the reason, that it is contrary to the policy of the law, that an alien should implead touching...