Mckenzie Et Ux v. Sumner

• Decision Date: 18 April 1894
• Citation: 19 S.E. 375,114 N.C. 425
• Court: North Carolina Supreme Court
• Parties: McKENZIE et ux. v. SUMNER.

19 S.E. 375

114 N.C. 425

McKENZIE et ux.

v.SUMNER.

Supreme Court of North Carolina.

April 18, 1894.

Wills—Nature of Estate Devised—Dry Trust.

1. A simple devise of real and personal property in trust for plaintiff, a married woman, where there are no limitations over, and no active duties to be performed by such trustee, vests the legal title to the real estate in plaintiff, under the statute of uses.

2. Plaintiff is entitled to have the personalty conveyed to her, and the trust terminated.

Appeal from superior court, Rowan county; Jacob Battle, Judge.

Bill in equity by C. H. McKenzie and wife against Julian E. Sumner. From a decree for plaintiffs, defendant appeals. Affirmed.

Thomas J. Sumner devised to defendant certain land, in trust for plaintiff, "to have and to hold, to her and her heirs, in fee simple, forever." He also bequeathed to de-fendant, in trust for plaintiff, 50 shares of stock in a manufacturing company. Plaintiff is a married woman, and sues to have the legal title to this property vested in her, and the trust terminated.

Lee S. Overman, for appellants.

T. P. Kluttz and Craige & Clement, for appellee.

SHEPHERD, C. J. As to the real estate devised to the defendant for the benefit of the plaintiff, there is no reason why the legal title is not vested in the plaintiff by the statute of uses, as the land is not conveyed to her "sole and separate use" (see authorities collected in Malone, Real Prop. Tri. 544), nor is the trustee charged, In any manner whatever, with any special duties in respect to the same. The case does not fall within either of the three well-known exceptions to the operation of the statute, and It would seem clear that the legal estate is executed in the plaintiff. 1 Perry, Trusts, 298, and the numerous authorities cited in the note. The statute, however, does not apply to personal property, such as notes and bank stock; and the legal title remains in the trustee until it Is, in some way, transferred to the equitable owner. Is there any reason why the court, exercising its equitable jurisdiction, should not have directed the assignment of the legal title in this instance? We can see none. The plaintiff being the absolute equitable owner, there are no ulterior limitations to be protected; and under the terms of the will the trustee has nothing but a bare, naked, legal estate, unaccompanied, as we have remarked, with a single, specified duty. As the plaintiff's separate estate is fully protected against the interference of...