Perkins v. Brinkley

• Decision Date: 15 October 1903
• Citation: 45 S.E. 541,133 N.C. 154
• Parties: PERKINS v. BRINKLEY.
• Court: North Carolina Supreme Court

45 S.E. 541

133 N.C. 154

PERKINS v. BRINKLEY.

Supreme Court of North Carolina

October 15, 1903

Appeal from Superior Court, Warren County; Moore, Judge.

Action by Mary E. Perkins against Abram Brinkley. From a judgment in favor of plaintiff for less than the relief demanded, she appeals. Affirmed.

See 45 S.E. 465.

A deed of trust conveyed certain land previously owned by the grantor to defendant in trust as an annuity of rents for the grantor's intended wife during her life, on condition that she would not claim any right or interest in the other property of the grantor and relinquished all right to dower. The trustee never took possession or received the rents and profits until after the death of the grantor, nor did he perform any duties imposed on him by the deed. Held that since the trustee had no power under the deed to prevent the cestui que trust from assuming control of the land or to prevent her husband from receiving the rents and profits, the trustee was under no duty to receive them, and was not liable for rents and profits received by the grantor while he remained in possession.

Pittman & Kerr, for appellant.

Tasker Polk, Thos. N. Hill, and Day & Bell, for appellee.

CONNOR J.

This action was originally brought by the plaintiff against Abram Brinkley, as trustee for plaintiff, and in his capacity as executor of Dr. W. M. Perkins, deceased, and against the executrix of Dr. Perkins. At the term subsequent to the filing of the complaint plaintiff submitted to a nonsuit as to the personal representatives of Dr. Perkins. The plaintiff alleged that on the 28th of January, 1893, Dr. W. M. Perkins in contemplation of a marriage then about to be solemnized between plaintiff and himself, executed a certain instrument in writing conveying to the defendant a tract of land upon the following trusts: "That the above 500 acres of land is conveyed to Abram Brinkley in trust as annuity of rents for Miss Mary E. Cheek during her lifetime, and it is understood that she will not claim for herself or through any other person any right, title, or interest in any property now owned or may hereafter be owned or become in possession of by said party of the first part, and she relinquishes all right of dower," etc. This deed was executed by the defendant, who was a party thereto. It appears that at the time of the said marriage Dr. Perkins was in possession of the land described in the deed, and remained in possession receiving all the rents thereon during the whole of the coverture between plaintiff and himself, he having died January 2, 1901.

The verdict of the jury established the following facts: That the defendant Brinkley never took possession of the land described in the complaint or received the rents and profits thereon until after the death of Dr. Perkins, or otherwise performed the duties imposed upon him by the said deed; that the said Dr. W. M. Perkins received the rents and profits on the said land from the date of the marriage until his death, without objection from the plaintiff, it being conceded that the defendant received the rents for the year 1901, and paid over to the plaintiff $102.50 thereof. The court rendered judgment for the balance, to wit, $97.50, to which judgment the plaintiff excepted and appealed.

In view of the nonsuit taken by the plaintiff against the personal representatives of Dr. Perkins, the record presents but one question for determination: Was it the duty of the defendant to take into his possession the lands conveyed to him, and rent them out, receiving the rents therefrom, and paying them over to the plaintiff? The answer to this question depends upon the character of the trust imposed upon him by the deed. Mr. Tiedeman, in his Law of Real Property, § 494, says "Where a special duty is to be performed by the trustee in respect to the estate, such as to collect the rents and profits, to sell the estate, etc., the trust is called 'active.' It is the duty which prevents the operation of the statute, for the trustee must have the legal estate in order to perform his duties. All other trusts are denominated "passive trusts,' because there is no duty imposed upon the trustee. He simply acts as the reservoir of the legal estate, because, from the terms and character of the conveyance and limitation, the statute cannot transfer the legal estate to the cestui que use or trust. Such would be a use upon a use--a use in chattel interests and uses to persons incapable of holding the legal estate; for example, married women." The distinction between a simple and a special trust is thus pointed out in Lewin on 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 settlor, is left to the construction of the law. In this case the cestui que trust has jus habendi, or the right to be put in 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. The special trust is where the machinery of a trustee is introduced for the execution of some purpose particularly pointed out, and the trustee is not, as before, a mere passive depositary of the estate, but is called upon to exert himself actively in the execution of the settlor's intention; as where a conveyance is to trustees upon trust to sell for payment of debts." Among the last class he says: "And if the trust be simply to permit A. to receive the rents, the legal estate is executed in A., this being a mere passive trust." This court, in McKenzie v. Sumner, 114 N.C. 425, 19 S.E. 375, speaking by Shepherd, C.J., says: "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,' nor is the trustee charged in any manner whatever with any special duties in respect to the same. *** 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 special duty. As the plaintiff's separate estate is fully protected against the interference of her husband by the provisions of the Constitution, and as the trustee has no power to withhold from her either the property or its income, we are unable to see why the legal title should remain in him, unless it be to enable him to charge the five per cent. commissions which he claims." The trust declared in the deed before us is indefinite. We construe it, however, to mean that the cestui que trust is to be permitted to collect and use the rents as her separate estate. The words used are, we think, capable of no other construction. There is no suggestion in the deed that the defendant is required to receive the rents and pay them to her. This construction of the deed, in the light of the authorities cited, would dispose of the appeal but for the fact that the deed was executed in contemplation of the marriage of the cestui que trust, and that such marriage followed...