Holmes v. Holmes

• Decision Date: 28 February 1882
• Citation: 86 N.C. 205
• Court: North Carolina Supreme Court
• Parties: WILLIAM HOLMES and wife v. DUNCAN HOLMES and wife.

86 N.C. 205

WILLIAM HOLMES and wife

v.DUNCAN HOLMES and wife.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Spring Term, 1880, of NEW HANOVER Superior Court, before Avery, J.

On the 20th day of June, 1851, William S. Campbell conveyed the land in controversy to W. C. Bettencourt and four other persons and their heirs, or the survivor of them, “in trust for Sarah Moore”--now the feme plaintiff Sarah Holmes. In declaring the trust there were no words of inheritance used.

On the 13th December, 1858, the said trustees conveyed the same land to T. C. Worth--the said Sarah being then covert. In 1862 Worth died, and his executors, under a power contained in his will, conveyed it to one Fitzgerald, who, in 1864, conveyed it to the feme defendant Elizabeth Holmes. In all these several mesne conveyances, the land is described as that “which was conveyed to the said Bettencourt and others in trust for Sarah Moore by William S. Campbell, by deed, bearing date the 20th June, 1851, and registered,” &c.

The plaintiffs offered evidence going to show that the feme plaintiff had not assented to the conveyance of the land to Worth by her trustees; and on the other hand the defendants offered evidence not only of such assent on her part, but that the real consideration of the conveyance was the emancipation by Worth of a certain slave, who was the sister of the feme plaintiff.

The first issue submitted to the jury was as follows: Was the deed executed to Worth, by the trustees, with the verbal consent of the feme plaintiff? Ans. No.

Another was: Did the plaintiff verbally consent to the execution of the deed to Worth, in consideration of the emancipation of her sister by him? Ans. Yes.

The jury also find that the plaintiff received no valuable consideration for such conveyance to Worth, and that all the purchasers had notice of the trust at the time of purchasing. The defendants moved for judgment in their favor, upon the findings as made by the jury, which being refused, they moved for a mistrial on account of the contradictions in the findings. This motion was also refused, and judgment rendered, whereby it was declared that the defendants were seized of the lands in trust for the feme plaintiff, and directing that the same be conveyed to her in fee. Thereupon the defendants appealed.Mr. D. J. Devane, for plaintiffs .

Messrs Russell & Ricaud and McRae & Strange, for defendants .

RUFFIN, J.

The first exception, we consider, is the one taken to the judgment rendered in the court below. It is insisted that inasmuch as no words of inheritance are used in declaring the trust in favor of the plaintiff Sarah, she took but a life estate, and it was error therefore to have adjudged a conveyance to her in fee from the defendants.

As a general proposition it is unquestionably true, that in dealing with equitable estates, the courts of chancery adopt the same rules of construction that the courts of law do, with reference to legal estates; but to this there are some few exceptions, and one is, that the use of the word “heirs,” is not always necessary, in order to give to an equitable estate the character of inheritability, if it appear from the context that such was the clear intention of the party declaring the trust. 2 Wash. on Real Property, 186. In Lewin on Trusts, 44, it is said that to declare a trust, one need only to make his meaning plain, as to the interest he intends to give, without strictly regarding the technical terms of the common law, in the limitation of legal estates; and as instances, it is remarked, that “an equitable fee may be granted without the word “heirs,” and an equitable entail without the words “““heirs of the body.”

Looking to the deed to the trustees in this case, we think it sufficiently appears to have been the intention of the maker, Campbell, to confer upon the plaintiff an equitable estate in fee. The language of the instrument is--“to W C. Bettencourt, &c., and their...