McKimmon v. . Rogers , 56 N.C. 200 ( 1857 )

Daniel Rogers, the father of William A. Rogers and Isaac Rogers, devised and bequeathed as follows: "I do appoint Isaac Rogers as trustee during the natural life of my son William, until his heirs may arrive at the age of maturity, and, therefore, I give and devise unto said Isaac Rogers, a certain tract of land, bounded, c., containing 254 acres; also one negro man named Virgil, to have and hold the said land and negro, to the said Isaac H. Rogers, his heirs, executors, administrators and assigns, in fee simple forever; in special trust and confidence, however, that the said Isaac H. Rogers, his executors, c., shall and will hold and keep, use and apply the same, to the uses and in trust following, and none other, that is, shall, after paying the annual taxes that shall be assessed, and become due, on said land and negro, shall apply rents and profits arising from the rents and leases of said land, and hire of said negro, to the sole and exclusive benefit of my son William A. Rogers, for and during the term of his natural life, and then to the use and benefit of his children, or heirs."

The bill sets forth, that William A. Rogers was indebted to the plaintiff for merchandise sold him; and that having taken his promissory note for it he brought suit on the same in Wake County Court, and obtained judgment for the sum due; that he took out a fieri facias, but the same was returned by the sheriff, and that the defendant had no goods or chattels, lands or tenements in this county; and the bill further alleges, that the said William A. Rogers had no property in Wake county whereby to satisfy said execution. The prayer is, that Wm. A. Rogers' interest in the land and negro may be sold to satisfy the debt.

The defendants answered, but did not vary the state of facts as above given. Isaac, the trustee, says that he has paid out considerable sums of money for fees and legal advice in defending this property from the efforts of William's numerous creditors, to subject it to the payment of their debts, which he thinks should be returned to him out of the fund.

The cause was set down on bill, answer and exhibits, and sent to this Court for trial. Under the will of Daniel Rogers, the land and slave mentioned in the pleadings vested in the defendant Isaac, in trust to hold the same and receive the profits, and after paying the annual taxes, "to apply the residue of the profits to the sole and exclusive use and benefit" of the other defendant, William. It was, no doubt, the wish of the testator to bestow this bounty upon his son in such a manner that the creditors could not reach it, but he has failed of his purpose, for William takes a trust estate which is recognized and enforced by law. It is a universal rule that whenever a man is entitled to an estate, either legal or equitable, it may be subjected to the payment of debts. There will be a decree for the plaintiff.

Whether the defendant Isaac is entitled to retain a portion of the fund by way of refunding the amount he has expended in "defending the many law-suits against William, and for advice in the management of the fund," may be presented on a motion for further directions after the fund is brought in.

PER CURIAM, Decree accordingly.