Rouse v. Kennedy

132 S.E.2d 308 (1963)

260 N.C. 152

Robert ROUSE and Margaret Lewis Rouse, Trustees under the Will of J. C. Lewis, deceased; Robert Rouse and wife, Margaret Lewis Rouse, individually, and Nora Mae Sutton Lewis v. William W. KENNEDY and wife, Meta Mae Kennedy.

No. 306.

Supreme Court of North Carolina.

September 18, 1963.

*311 Whitaker & Jeffress, for plaintiffs-appellees.

R. S. Langley, for defendants-appellants.

DENNY, Chief Justice.

The only assignment of error is to the judgment entered below.

The appellants contend that in view of the following provision in the last will and testament of J. C. Lewis, to wit, "If it becomes necessary in the judgment of my Trustees to sell any of the real estate, it is my wish and desire that the farm lands known as the `Harris Place' be first sold to provide the necessary funds to carry out the purposes of this trust," the trustees are not empowered to subdivide and sell any portion of the "Homeplace," or the "Lettie Taylor Place," until after the "Harris Place" has been sold.

The testator clearly expressed the desire that his trustees should not sell any of his farm lands unless it became necessary to do so in order to carry out the purposes of the trust. It has been determined that the rents from the farms which constitute the principal assets of the trust are insufficient to carry out the purposes of the trust. Furthermore, it appears from the findings of fact that by subdividing and selling a small portion of the "Homeplace," consisting of only 15 residential lots fronting on North Carolina paved Highway 58, located across the highway from Southwood School, which is one of Lenoir County's consolidated schools, the financial requirements of the trust will be met and the farming operations of the trustees will not be materially affected. The "Homeplace" is situate near the City of Kinston.

The trustees are expressly empowered "to subdivide and develop said property, or any part thereof into subdivisions for the sale of lots." The location of land adjacent to an improved highway has a great deal to do with its desirability and sale value as a subdivision. No doubt the decision to subdivide the particular land involved herein was influenced by its location adjacent to a hard surfaced highway, its accessibility to a consolidated public school, and its nearness to the City of Kinston.

*312 In view of the broad powers vested in the trustees to hold, manage, and dispose of said lands in accord with their best judgment and in their discretion, for the uses and purposes set forth in Item V of said will, creating the trust estate, we hold that the "wish and desire" expressed with respect to the disposition of the "Harris Place," were merely precatory words and did not constitute a testamentary disposition of the property or a mandatory request with respect to the priority of disposition.

In 54 Am.Jur., Trusts, Section 55, page 65, it is said: "* * * (T)he English and American majority rule is that precatory words are presumably indicative of no more than a request or an expectation, and do not create a trust unless the context or the surrounding circumstances at the time of the making of the trust instrument show that the trustor, although he used the language of request, really meant to leave the trustee (devisee, legatee, or legal donee) no option in the matter," citing Carter v. Strickland, 165 N.C. 69, 80 S.E. 961, Ann.Cas. 1915D, 416. This case has been cited many times with approval by this Court. See Hardy v. Hardy, 174 N.C. 505, 93 S.E. 976; Laws v. Christmas, 178 N.C. 359, 100 S.E. 587; Springs v. Springs, 182 N.C. 484, 109 S.E. 839; Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793; In re Estate of Bulis, 240 N.C. 529, 82 S.E.2d 750; Andrew v. Hughes, 243 N.C. 616, 91 S.E.2d 591. Cf. Moore v. Langston, 251 N.C. 439, 111 S.E.2d 627.

In Springs v. Springs, supra, this Court said: "It is true that under the old English decisions, which were followed by a few of the early cases in this country, the expression of a wish by the testator, like that of a sovereign, was construed as a command; but all the later cases both in England and in this country repudiate the doctrine, and hold that in the absence of a clear indication of a contrary intent, expressions of `wish,' `desire,' etc., are to be taken as used in their commonly accepted sense and are not to be artificially construed by the courts as a trust."

We hold that upon the delivery of the deed heretofore tendered to the defendants, and payment of the purchase price agreed upon, the defendants will have a good and indefeasible fee simple title to the premises conveyed.

Therefore, the judgment entered by the court below is in all respects

Affirmed