Opinion
(Decided 14 March, 1899.)
Will — Charge Upon Land — Personal Trust.
After a testator has devised all his estate, real and personal, to his grandson, in fee, the will says: "Item 3. It is my will and desire that the said William Thomas Perdue shall take care of his grandmother Lundy Falkner, and also of his mother, Mary A. Perdue, during their lifetime, and also to take care of his two sisters, Jennie A. and Bettie Ann Perdue": Held, that the words are merely recommendatory — expressive of personal confidence, and do not amount to a trust and charge upon the land, following it in the hands of purchasers.
ACTION asking for the declaration of a trust in favor of plaintiffs upon a tract of land devised to defendant and W. T. Perdue, by his grandfather, James H. Falkner, and conveyed to his codefendants, Powell and Cooper, tried before Brown, J., at Fall Term, 1898, of VANCE.
B. W. Shaw and T. M. Pittman for plaintiffs. (162)
A. C. Zollicoffer, T. T. Hicks and A. J. Harris for defendants.
His Honor ruled that the words used created no trust or charge upon the land. Plaintiffs excepted and appealed.
The devise is stated in the opinion.
James H. Falkner died about the year 1888, having first made and published his last will and testament, the construction of items 2 and 3 of which forms the basis of this action by the plaintiffs. The said items are as follows:
"Item 2. I will and bequeath unto my grandson, William Thomas Perdue, all of my land and personal property, to him and his heirs and assigns forever.
"Item 3. It is my will and desire that the said William Thomas Perdue shall take care of his grandmother, Lundy Falkner, and also of his mother, Mary Ann Perdue, during their lifetime, and also to take care of his two sisters, Jennie A. and Bettie Ann Perdue."
The grandmother, Lundy Falkner, is dead, and the said Jennie A. and Bettie Ann Perdue are now married and live with their husbands.
The said James H. Falkner died seized and possessed of a tract of land in Vance County, containing about 66 acres, which William Thomas Perdue mortgaged, and upon default of payment of the debt secured by the mortgage the land was, after several years, sold by the mortgagee, and the defendants Powell and Cooper became the purchasers, went into possession, and now hold the same.
Lundy Falkner is dead, and the question is, does the will make the support of the plaintiffs a charge upon the land in the hands of defendants, or is it a personal trust and confidence in W. T. Perdue?
No rule is better settled than that the intention of the testator must govern. The intention must be express or implied from the language of the will, considered as a whole. Beach on Wills, secs. 255, 256. We see nothing in this will which implies that a charge on the land for the support of the plaintiffs was intended. It is only a recommendation or request.
The following are some instances in which the Court considered (163) that certain words implied the intent to charge the property as a lien thereon:
In Outland v. Outland, 118 N.C. 138, the care and support were the "consideration" expressed for the devise to the sons.
In Misenheimer v. Sifford, 94 N.C. 592, there was a devise of land to a son, "provided" he maintained his mother, during his life, comfortably, etc. Held, to be a charge.
In Gray v. West, 93 N.C. 442, it was provided in the will that "Arey Gray is to have her support out of the land." This was held a charge.
Taylor v. Lanier, 7 N.C. 98, and Wellons v. Jordan, 83 N.C. 371, are instances where the trust was personal only, and similar in principle to the one before us.
We find no error in the ruling of the court below.
AFFIRMED.
Cited: Bailey v. Bailey, 172 N.C. 674.