Savings Bank & Trust Co. v. Johnson

Allen, J. We agree with his Honor that the words used in the eighth item of the will in connection with the appointment of the executors, that they are “to have entire control thereof (the property) so long as may be necessary for the fulfillment of this will,” do not create a trust. It is true, no particular words are necessary for the creation of a trust, but the intention to do so must be clear and manifest (Haywood v. Wachovia Co., 149 N. C., 208; Haywood v. Wright, 152 N. C., 421), and in determining the intention of -the testator the entire will must be considered, and not separate-parts of it. Taylor v. Brown, 165 N. C., 161. *308 "When so considered, we not only find no language in item 8 importing a trust, but when we look at the other parts of the will we nowhere find any trust declared. The control of the property is given to the executors, not to trustees, and for the fulfillment of the will and not to execute a trust and no power or authority is conferred that did not exist under the law, as they had the right, as executors, to-have control of the property “so long as may be necessary for the fulfillment of the will.” Again in the same item the executors are appointed guardians of the minor children, which would be unnecessary if they were trustees, and upon an examination of the whole will the intention is clear that the testator contemplated a division of his property now, and another and final division upon the death of a child leaving no children, which would be in conflict with the position that the executors are to hold and control the property as trustees. It also appears from the will that the wife.and children are the objects of the testator’s bounty, and he declares his intention that they shall share equally in real and personal property. In item 2 he gives the wife his home place for life, and after giving away certain specific amounts and making a devise of a tract of land, he provides in item 7 that his wife and children shall share equally in real and personal property. This devise to the wife is absolute, because the language in item 7, “if either die without children,” does not refer to the wife, but to the children ; and if absolute, it is inconsistent with the position that the whole property shall be held by trustees; and the part of item 8 relied on to create a trust applies with equal force to the property given to the wife as to that given to the children. If, however, it should be held that the language is sufficient to establish a trust, it would now be a passive and not an active trust, because it could only continue “so long as may be necessary for the fulfillment” of the will, and all the duties under the will have been performed except the distribution of the property, and if passive, the devisees and legatees would be entitled to the possession and use of the property. Perkins v. Brinkley, 133 N. C., 86; Lummus v. Davidson, 160 N. C., 487. The ruling upon the other question involved in the appeal is, in our opinion, erroneous. ■■ No language can be found in the will which limits the estate and interest given to the wife and children except the words in the seventh item, “if either die without children,” and it is clear these do not refer to the wife, because at the time of making the will she had five living children, and it is improbable that the testator contemplated the death of all the children before the death of the wife, and in the contingency named "their property is to be equally divided between their brothers and sisters.” *309 It follows, therefore, that the interest of the wife is absolute, and that she is now entitled to the property devised and bequeathed to her. These provisions are in the item of the will which declares, “My wife and children shall share equally in both real and personal property,” and this principle of equality which pervades the whole will would be destroyed if the wife can take now and the right of the children is postponed. The use of the language in this item, “the division not to be final till my youngest child, Yirginia, is 21 years,” also indicates a purpose to have a division before that time, and is without meaning unless interpreted to give the right to a division of the property among the children now, but if a child dies without leaving children, that there shall be another and final division. It follows, therefore, that the children take the whole interest in the property, which may be defeated upon dying without children, or, as it is usually termed, a determinable fee, which passes a present interest, subject to be defeated, however, upon the happening of the contingency (Rees v. Williams, 165 N. C., 202) ; and following the principle which favors the early vesting of estates (Dunn v. Hines, 164 N. C., 120), and in accordance with the declared purpose that -final division shall be had when Yirginia becomes 21, the time for the happening of the contingency would be that fixed for final division, and the estates and interests will then be absolute. The court may by decree protect the several interests until the estates become absolute, taking into consideration the protection afforded by the guardian bonds of the infants. Reversed on plaintiffs’ appeal. Affirmed on defendants’ appeal.