Waldroop v. Waldroop

• Decision Date: 02 June 1920
• Docket Number: 595.
• Parties: WALDROOP v. WALDROOP ET AL.
• Court: North Carolina Supreme Court

103 S.E. 381

179 N.C. 674

WALDROOP v. WALDROOP ET AL.

No. 595.

Supreme Court of North Carolina

June 2, 1920

Appeal from Superior Court, Macon County; Roy, Judge.

Proceeding by Mary M. Waldroop against Larry S. Waldroop and others infants, represented by a guardian ad litem. From a judgment as prayed, defendants appeal. Modified and affirmed.

The remainder of testator's property after the directed payment of legacies and debts from the proceeds of the estate, which is given testator's wife till their youngest child is of age, and then to be divided equally between her and the children with instruction to her to give them an education, held charged with their education "instruct" being imperative.

This is a proceeding commenced before the clerk and transferred to the superior court in term, for the purpose of having certain lands devised in the will of W. H. Waldroop sold and a part of the proceeds applied to the education of his children.

The widow of W. H. Waldroop is the petitioner, and all of his children are defendants, those under 21 years of age being represented by a guardian ad litem.

The will is as follows:

"I W. H. Waldroop, being of sound mind but feeble body, do make this my last will and testament:

First. To my sons Larry S. Waldroop and W. H. Waldroop, Jr., I give and bequeath the sum of one hundred and fifty dollars each to be paid them by my executor out of the proceeds of my estate.

Second. All the remainder of my property, real, personal and mixed, I will and bequeath to my wife, Mary M. Waldroop, to have and to hold till my youngest child is of age, then to be divided equally between her and her children by me living at the time, and I instruct her hereby to give each of them an equal education fitted to their station in life.

Third. I desire my executor to see that all of my just debts are paid, and whatever is left of my estate to be disposed of as aforesaid.

I hereby nominate and appoint my wife, Mary M. Waldroop, my executor without bond."

It is alleged in the petition that the petitioner has no sufficient money to maintain and educate the infant children, and this is admitted in the answer; but the defendants contend that the court has no authority to order a sale of the land or to direct a part of the proceeds of sale to be set apart for the education of the children.

Judgment was entered ordering the land to be sold and that out of the proceeds a sufficient amount be withheld for the education of the minor children, and the defendants excepted and appealed.

A. W. Horn, of Franklin, for appellants.

Jones & Jones, of Asheville, for appellee.

ALLEN J.

This proceeding is, in one respect, peculiar in that the plaintiff is seeking to have a trust impressed upon property which she owns in fee until the youngest child becomes 21 years of age and thereafter at least a one-fourth interest therein in favor of the defendants, who resist the declaration and enforcement of the trust; but this results from the fact that the defendants are infants and own an interest in the land, and the careful and conscientious attorney, who represents them, felt it was his duty to submit the question to the court.

The proceeding began before the clerk; but, when it was transferred to the superior court in term, it was as if commenced there (Roseman v. Roseman, 127 N.C. 494, 37 S.E. 518), and the court had jurisdiction to order a sale of the property for reinvestment, as all who could by any possibility have an interest in the land were parties ( Springs v. Scott, 132 N.C. 548, 44 S.E. 116).

Can the court go further and direct that a part of the proceeds of sale be set apart for the education of the infant children of the testator?

The answer to this question requires an examination and construction of the clause instructing the executrix to provide for educating the children.

"It must be conceded that it is not necessary for the valid declaration of a trust that any peculiar language be used." St. James v. Bagley, 138 N.C. 389, 50 S.E. 842, 70 L. R. A. 160:

"The intent is what the court looks to." Blackburn v. Blackburn, 109 N.C. 488, 13 S.E. 937.

"No technical language, however, is necessary in the creation of a trust, either by deed or by will. It is not necessary to use the words 'upon trust' or 'trustee,' if the creation of a trust is otherwise sufficiently evident. If it appear to be the intention of the parties from the whole instrument creating it that the property * * * is to be held or dealt with for the benefit

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