(February Term, 1896.)
WILL, CONSTRUCTION OF — DEVISE TO WIFE — TRUST.
A testator devised as follows: "I give to my beloved wife * * * all my property of every description, to keep and hold together for her use and the use of my children, after my just debts are paid": Held, that the widow holds the estate during her life, as trustee for her own use and the use of the children, and has no power to sell or convey any estate.
ACTION heard at April Term, 1895, of FRANKLIN, before (223) Coble, J., on exceptions to the report of T. W. Bickett, referee.
W. M. Person and Shepherd Busbee for plaintiffs.
F. S. Spruill and S. F. Mordecai for defendants.
The purpose of the action was to obtain a construction of the will of Dr. E. A. Crudup and to set aside a deed that had been executed by C. J. Crudup, the widow, and some of the children of the testator, in the attempt to convey a fee simple, etc.
E. A. Crudup died 1 April, 1876, leaving him surviving his wife, Columbia J. Crudup, and eight (230) minor children, seized and possessed of real and personal property. His will was as follows:
"I, Edward A. Crudup, of the State of North Carolina, Franklin County, being of sound mind and disposing memory, make this, my last will and testament. Item is, I give to my beloved wife, Columbia Crudup, all my property of every description, to keep and hold together for her use and the use of my children, after my just debts are paid. This 31 March, 1876. "EDWARD A. CRUDUP.
"Witnesses: J. C. FOWLER, G. M. COOLEY."
The plaintiff C. J. Crudup was duly qualified executrix, and the other plaintiffs are the children of the said testator, some of whom are now of full age, and have made deeds of conveyance for their interest in said lands to the defendants, the said C. J. Crudup having joined with them in so doing.
The question presented is whether the wife and children, upon the death of the testator, took a fee simple estate as tenants in common, or whether the said C. J. Crudup, the widow, holds the estate as trustee for her own use and the use of the children, without power to sell or convey any estate.
The rule is well settled that such questions must be determined by the intention of the testator, and that is to be ascertained by looking at the whole instrument in the light of surrounding circumstances. Holt v. Holt, 114 N.C. 241. These circumstances appear from the foregoing statement; and, looking at the language in its natural bearing upon the situation, we think the testator intended that his wife should take and hold his entire estate, after the debts were paid, and keep it during her life, and also keep the children with her during their minority, and use it to the best advantage for the benefit (231) of herself and his children, and this we declare to be the meaning. It appears to us to be as if he had said: "I desire that you, as long as you live, keep my minor children with you as the family; care and provide for them as well as you can; and to enable you to do so I leave all my property with you, to be used for your mutual comfort for that length of time. I adopt this plain and simple plan in order to avoid the necessity, expense and risk of the appointment of a guardian and administrations, if any of the children should die under age, and also to save the property from waste until the children shall have arrived at more mature age."
Taking this view, the trustee, having no power under the will to do so, could not sell or mortgage any part of the property, as that would at once defeat the intent of the testator. We refer in support of this view to Young v. Young, 68 N.C. 309, where A gave to his wife "all my estate — real, personal and mixed — to be managed by her (and that she may be enabled the better to control and manage our children), to be disposed of by her to them in that manner she may think best for their good and her own happiness." Held to be a gift to the wife in trust, not for herself nor for the children alone, but for both, to be managed at her discretion for the benefit of herself and children. Held further, that the trust is coupled with the power to dispose of the property at her own discretion as to time, quantity and person, and that no one of them is entitled as of right to have a share of the property allotted to him upon his arrival at age.
This is much like the present case, with some discretionary power in the trustee not found in the instrument before us. The defendants contend that upon the testator's death the wife and children were seized in fee as tenants in common and could dispose of their interest at will. We cannot assent to that view. That would have been (232) so if Crudup had died intestate, with the slight difference as to the widow in taking one-ninth of the whole instead of a life estate in one-third as her dower, and there was no reason for making a will to dispose of property "according to law." We have examined the decisions of this Court cited by the defendant, and do not find any in conflict with our view of this case. With this question settled, it is not necessary to consider the other questions propounded between the defendant and those children who have undertaken to assign their supposed interest. These will be in order after the death of the trustee, C. J. Crudup, as the parties may deem proper.