Levy v. . Griffis , 65 N.C. 236 ( 1871 )

A trust of which the scheme is in the outset completely declared is anexecuted trust. If the scheme be imperfectly declared in the outset, and the creator of the trust has merely denoted his ultimate object, imposing on the trustee or on the Court, the duty effectuating it, in the most convenient way, the trust is executory.

The requirement to devise means for effectuating the trust, proves that what had been done, is not meant as a conclusive declaration of the terms of the trust. Adams Eq. 40.

A trust for the separate use of A, and at her death for B, and his heirs, is clearly an executed trust, for the creator of the trust has done everything he expected to do, and no duty is imposed on the trustee, or on the Court, to complete a thing left imperfect.

In our case a power is given to Mrs. Nicholson to dispose of the land to any person she may wish; this was all that the creator of the trust intended to do, and nothing was left to be completed by the trustee or by the Court.

Had Mrs. Nicholson executed the power, by appointing a trust to B and his heirs, the effect would have been the same, as if the trust had been declared in favor of B, in the first instance.

It is a rule in the doctrine of powers, that the use created under the power, takes effect in the same manner as if it had (238) been inserted, instead of the power, in the deed containing the power. Thus, suppose an estate conveyed to the use of A for life, remainder to such uses as she shall appoint — she appoints the estate to B for life remainder to his first and other sons, in tail male. After this appointment is made, it is the same as if the estate had been originally limited to the use of A for life, remainder to the use of B, for life, remainder to his first and other sons in tail male. Coke Lit., 272 note vii, 2.

So, if Mrs. Nicholson had appointed the use to B and his heirs; after the appointment, it would have been the same as if the trust had been originally limited to her separate use and after her death to the use of B, and his heirs. It follows that the trust was an executed and not an executory trust. It is settled, that an executed trust limited by deed, will have the same construction as if it had been a conveyance of the legal estate. Adams, page 40 says — "The terms in which the trust is declared are interpreted by the ordinary rules of law. It was at one time suggested that the language of a trust might be construed with greater license, than that of a gift at law. But this notion is now at an end." According to the ordinary rules of law a feoffment to A passes an estate for his own life; an estate of inheritance cannot be created by deed intervivos without the use of the word "heirs." The trust being limited to Mrs. Nicholson without words of inheritance, vested in her only an estate for her own life, and the general power of appointment cannot have the legal effect of enlarging her estate into a fee simple, by any rule of construction applicable to deeds.

Had the power been created by a devise, we are inclined to the opinion upon the authorities cited, that Mrs. Nicholson would have taken an estate in fee simple. A devise to A. and to such persons as he shall appoint, vests the absolute property in A., without an (239) appointment. But if it be to him for life and after his death to such person as he shall appoint, he must make an appointment, in order to entitle that person to anything. The express life estate to him repels the implication of a fee simple for himself. 1 Sugden on Powers 123, sec. 13. Such, seems to be the law in England. In this State the doctrine that a devise to one with a general power of appointment carries a fee simple, is put beyond all question by statute. Rev. Code, ch. 119, sec. 26, which provides that in a devise, every estate shall be construed to be a fee simple, unless the will shows the contrary intention. The statute of devises excepts femes converts, and it was necessary to give Mrs. Nicholson a power, to enable her to dispose of the estate. Hence, had it been by will, its insertion is not inconsistent with an intention that she should take a fee simple in the first place. But we are dealing with a deed, and not with a devise.

As no appointment was made under the power, the question whether a power of appointment can be created by a deed of "bargain and sale" or "covenant to stand seized" is not presented. See Smith v. Smith, 46 N.C. 135.

Nor is the question presented whether a deed purporting to be a deed of bargain, and sale, may not be taken to be a deed passing the estate, without the ceremony of the livery of seizure, as a deed of feoffment by force of the statute. Rev. Code, ch. 37, sec. 1, under the maxim, "ut resmagis valeat quam periat."

We are of opinion that the defendant Briggs, holds the legal estate in trust for the plaintiff, Catharine Levy, who is entitled to an estate in fee simple, as the heir-at-law of Anderson Nicholson, who was entitled to a resulting trust, contingent upon the non-execution of the power of appointment.

There is no error.

Per curiam.

Judgment affirmed. Cited: Hogan v. Strayhorn, 65 N.C. 287; Bond v. Moore, 90 N.C. 242;Thurber v. LaRoque, 105 N.C. 307; Johnson v. Blake, 124 N.C. 110;Henderson v. Power Co., 200 N.C. 448.

(240)