Weaver v. . Kirby

IIoke, J. Our statute provides that when real estate shall be devised to any person, the same shall be held and construed as a devise in fee simple, unless such devise shall in plain and express words show, or.it shall be plainly intended by the will or some part thereof, that the testator intended to convey an estate of less dignity; and under the terms of this statute, and, from a perusal of the terms of the will itself of "W". H. Perkins, it is clear that he intended to and did confer upon his wife, Nannie E. Perkins, the absolute ownership in all of his property. C. S., sec. 4162; Smith v. Creech, ante, 187; Fellowes v. Durfey, 163 N. C., 313; Bass v. Bass, 78 N. C., 374; Newland v. Newland, 46 N. C., 463. This being true, the plaintiffs have set forth no valid claim on the estate of "W. H. Perkins, not under any devise of the wife, for she has made none in their favor, nor by way of impressing a trust upon the property, by reason of the uncertainty as to the beneficiary, or rather by an entire failure to designate one. St. James v. Bagley, 138 N. C., *391 384-393, quoting with approval from Morice v. Bishop, 10 Vesey, 536; Bridges v. Pleasants, 39 N. C., 26; Hester v. Hester, 37 N. C., 330; Tilden v. Green, 130 N. Y., 29; Pritchard v. Thompson, 95 N. Y., 76; Howard v. Carusi, 109 U. S., 725; Story’s Equity Jurisprudence, 13 Ed., sec. 1070; Bispbam Equity, 9 Ed., sec. 65; Gardner on Wills, p. 546. In tbe citation to Story, the principle is stated as follows: “Whenever- the objects of the supposed recommendatory trust or power are not certain or definite, whenever the property to which it is attached is not certain or definite, whenever a clear discretion or choice to act or not to act is given, whenever the prior disposition of the property imports absolute and uncontrollable ownership, in all such cases courts of equity will not create a trust in words of this character.” In Bispham the author approves the statement: “That to constitute a valid trust, undoubtedly three circumstances must concur — ‘sufficient words to raise it, a definite subject, and an ascertained object.’ ” And in Gardner on Wills it is said: “As a general rule, whoever is capable of taking and holding the legal title to property under a will may, as beneficiary, receive the equitable title; and as the legal estate can only be conferred upon a definite taker, the beneficiary likewise must be certain and definite.” And, further, a trust without a definite beneficiary, who can claim its enforcement, is void. From these two positions the estate of absolute ownership conferred upon the wife, and the utter failure to designate a beneficiary — and they are both in accord with well-considered authority — it necessarily follows, as stated, that no interest or estate would arise to plaintiffs under the fourth item of the will of W. H. Perkins, but the question is left entirely to the discretion of the wife, to be exercised, or not, as she may determine ; and she having failed to act in the matter, the property will go to her heirs and legal representatives. Bass v. Bass, 78 N. C., 374; Alston v. Lea, 59 N. C., 27; and Springs v. Springs, 182 N. C., 484; Garter v. Strickland, 165 N. C., 69, and cases cited, are in full support of the position. A demand for payment of services rendered by these plaintiffs, as in a quantum meruit, was not insisted on in the argument before us, and properly so, for in that aspect of the matter, there being a misjoinder, both of parties and causes of action, the demurrer must also be sustained and the action dismissed, without prejudice, however, to the right of the parties separately to prosecute any claim they may have for services rendered. Shore v. Holt, 185 N. C., 312; Roberts v. Mfg. Co., 181 N. C., 204. Demurrer sustained and action dismissed.