Saint Mary's School & Junior College, Inc. v. Winston

DeNny, J. It is disclosed by the record herein, that the purported codicil to the will of Eliza A. Pool, dated 5 June, 1928, was not probated until sometime after the original will, dated 9 July, 1931, and the codicil, dated 1 June, 1932, had been probated. It will also be noted that the will of Eliza A. Pool, executed 9 July, 1931, contains the following provision : “All other Wills left by me I declare null and void.” Therefore, this purported codicil, executed 5 June, 1928, as well as any will it was intended to modify, explain or supplement, was declared to be null and void by the testatrix. Consequently, the kind of estate which the plaintiff owns in the property involved herein must be determined by the provisions contained in Item Twelve of the last will and testament of Eliza A. Pool. Are these provisions sufficient to vest in Bessie T. Brown, individually, or in Bessie T. Brown and Willis G. Briggs, as executors of said will, title to the property in fee simple ? We do not think so. It must be conceded the provisions under consideration are not sufficient to create a trust, but, if they were sufficient, since no beneficiary is named, the trust would be void for uncertainty. Thomas v. Clay, 187 N. C. 778, 122 S.E. 852; Dry Forces, Inc., v. Wilkins, 211 N. C. 560, 191 S.E. 8; Woodcock v. Trust Co., 214 N.C. 224, 199 S.E. 20. *329 Tbe appellant contends, however, that since it is a general rule to construe a residuary clause so as to prevent intestacy as to any part of the testator’s estate, unless there is an apparent intention to the contrary expressed therein, Faison v. Middleton, 171 N.C. 170, 88 S.E. 141; Crouse v. Barham, 174 N.C. 460, 93 S.E. 979; McCullen v. Daughtry, 190 N.C. 215, 129 S.E. 611; Tate v. Amos, 197 N.C. 159, 147 S.E. 809; Case v. Biberstein, 207 N.C. 514, 177 S.E. 802; Rigsbee v. Rigsbee, 215 N.C. 757, 3 S.E. 2d 331; Ferguson v. Ferguson, 225 N.C. 375, 35 S. E. 2d 231; Jones v. Jones, 227 N.C. 424, 42 S.E. 2d 620, the provisions in the residuary clause of the last will and testament of Eliza A. Pool are sufficient, under the decision in the case of Ralston v. Telfair, 17 N.C. 255, to vest in the executors of her will a fee simple title to all her real estate, subject to the life estate of Bessie T. Brown. It is not contended in appellant’s brief that the title vested in them in trust for some unnamed beneficiary, or beneficiaries, or the next of kin, but that the executors took beneficially for themselves. We do not think the provisions under consideration on this appeal are sufficiently similar to those construed in the Ralston case to make that decision controlling in the instant case. Here Eliza A. Pool made her devise and appointed her executors in the following language: “I give all the residue of my property to Bessie T. Brown to use during her lifetime and I hereby appoint Bessie T. Brown and Willis G. Briggs my lawful executors to all intents and purposes to execute this my last Will and Testament as I know they will carry out my wishes. They are to give no bond but take entire charge of all my estate.” Certainly there is nothing in the foregoing language to indicate that in carrying out her wishes, the executors W’ere to do anything more than carry out her wishes, which were expressed in her will. The further provision to the effect that no bond was to be given, but that the executors would take entire charge of all her estate, is not sufficient to constitute a devise in fee simple, to the executors. In the Ralston case, the pertinent parts of the testator’s will read as follows : “It is my wall and desire, that my notes and bond amounting to between eight and ten thousand dollars, should remain in the custody of Churchwell Perkins, who has them now in possession, and that he should ■collect them as speedily as possible, and to pay the debts, and the remainder to be paid to the executors, to dispose of as they may think fit. It is my will, that the remainder of my property should be disposed of as my executors think proper.” In an action against the executors by one who alleged himself to be Ralston’s next of kin, the court held the executors took the fee “beneficially for themselves,” and that they did not hold the property as trustees for the next of kin. *330 It is stated in tbe deed from the executors and Bessie T. Brown, individually, to the plaintiff, that the deed is made “in accordance with the known wishes and instructions of said Eliza A. Pool, and so expressed by her.” .Conceding this to be true, we can find no such “wishes and intentions” expressed by her within the “four corners” of her will. Weaver v. Kirby, 186 N.C. 387, 119 S.E. 564; Thomas v. Clay, supra; Trust Co. v. Cowan, 208 N.C. 236, 190 S.E. 87. Since Eliza A. Pool devised to Bessie T. Brown a life estate only in the residue of her property, and failed to dispose of the remainder, we hold the conveyance from Bessie T. Brown, individually, and Bessie T. Brown and Willis G. Briggs, as executors of the last will and testament of Eliza A. Pool, conveyed nothing more than the life estate of Bessie T. Brown. Therefore, the plaintiff- only holds an estate pur autre vie in the property. The judgment of the court below is Affirmed.