Davis v. Atkinson
| Decision Date | 31 January 1869 |
| Citation | 63 N.C. 210 |
| Court | North Carolina Supreme Court |
| Parties | DOE ex dem GEORGE DAVIS v. THOMAS ATKINSON. |
In an action of ejectment, the only questions which arise in regard to the title are as to its validity at law.
EJECTMENT, tried before Russell, J., at Fall Term 1868 of the Superior Court of NEW HANOVER.
The only question raised upon the trial was as to the estate given to the defendant, in the land in question, by the following clause in the will of F. J. Hill, deceased:
“I give, devise and bequeath unto Bishop Thomas Atkinson, Bishop of North Carolina, and to his heirs and assigns, my house and lot, from and after the death of my wife, in trust and for the use of the poor orphans of the State of North Carolina, and the said Bishop and his successors to have the right to select such orphans as shall receive benefit under this trust and bequest, and he shall direct and control said trust in the best way for the support of such orphans and the formation of their minds, and education, as to him may seem best.”
At the time of bringing the action Mrs. Hill was dead.
His Honor in the Court below having upon the case agreed, given judgment for the defendant, the plaintiff appealed.
Strange, for the appellant .
Person and Moore, contra .
Upon the argument the attention of the counsel of both parties, was mainly directed to the validity of the trust declared by the will.
In this action the Court is confined to the question of the legal title, and it is not at liberty to express an opinion, in respect to the trust. It is clear, that, under the devise to “Thomas Atkinson and to his heirs and assigns,” the defendant is entitled to the legal estate in fee-simple. The addition of the words “Bishop of North Carolina” has no legal effect, under the maxim, utile per inutile non vitiatur. There is no error.
Judgment affirmed,
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Miller v. Atkinson
...367, Person v. Cary, 24 How. U. S. 486, Stanly v. Colt, 5 Wall. 119. PEARSON, C. J. The legal estate being in the defendant, (see Davis v. Atkinson, 63 N.C. 210,) there is no difficulty on that head; so the case turns on the validity of the trust. It is insisted that the trust is so indefin......