Opinion · Supreme Court of North Carolina

Carson v. . Carson

Carson v. . Carson, 60 N.C. 575 (N.C. 1864)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1864-06-05
Topic: general

Citator

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Cited by: 4 opinions

CARSONv. CARSON,60 N.C. 575(1864)

JOHN CARSON, EXECUTOR OF W. M. CARSON AND OTHERS, v. GEORGE S.

CARSON AND CATH. CARSON AND OTHERS.

(Winst. Eq., 24.)

Supreme Court of North Carolina

(June Term, 1864.)

1. Where a deed recites that it is made in consideration of good will and affection to A., the wife of B., and the children of A. and B., namely, C. D., etc.,and such as they may have hereafter, and property is conveyed by it to B. in trust "for the children aforesaid, and such as may be born and begotten by the said B. hereafter," the trust is for the children of A. and B., and the children of B. by an after-taken wife have no interest in the trust property.

2. B. having power by the deed to him to advance the children of himself and A. by conveying to them or any of them a portion of the trust property, on 6 January, 1850, conveys to his son John, a child of himself and A., a part of the trust property by way of advancement, as the deed declares, and on the same day John reconveys to B. the same property inPage 375consideration of the natural love and affection he bears his half-brother and sister, the children of his father by an after-taken wife, in trust for his half-brother and sister, with power to B. to convey the property to thecestui que trustby deed or will, and B. by his will does devise and bequeath the property to his said two children, his will is inoperative, and the children by the last marriage take nothing under the deed from John.

IN May, 1842, Jonathan L. Carson and George M. Carson (576) conveyed to William M. Carson lands, slaves, and other personal property by a deed which recites that it is made in consideration of the sum of $1, and the further consideration of the good-will and "affection the grantors have for Almyra Carson, the wife of William Carson, and the children of the said Almyra and William, namely, John, Martha M., Mary M., Matilda A., and William, andsuch as they may have hereafter."After describing the property and limiting it to the grantee, his heirs, administrator, etc., the deed declares "that the said William shall hold and possess the property for the sole and separate use of his wife, the said Almyra, and the children aforesaid, and such as may be born and begotten by the said William hereafter," "and shall have power to receive and appropriate the proceeds, etc., towards the maintenance of his said wife and the children aforesaid, and such as he may have hereafter, and shall have power to apply the same towards the education of the said children, and as they come to years of maturity, to advance the same with such part of the said property and its increase as to him shall seem meet"; "and it is also provided, that in case the said Almyra shall depart this life before the said William, then her interest in said property of all kinds is to cease and determine, and the said William shall not only have power by deed to advance his said children out of said property in his lifetime, but he is hereby fully (577) authorized at his death, by last will and testament, to devise and bequeath the said property and its increase to his wife and such of his children as he shall deem right; and in case he shall die without a last will and testament, then the said property, if his said wife be alive, shall be divided according to the laws regulating descent and dower and the laws distributing personal estate, and the said William is not to be liable to account to his said children — it being the true intent of this conveyance to provide for the wife of the said William and his present and future children, and to allow him to apply the property at his discretion to the benefit, support, nurture, education, and advancement of said wife and his present and future children."

Mrs. Almyra Carson died in 18....., and William M. Carson married again, and had two children of the second marriage — the defendants George S. and Catherine.Page 376

On 6 January, 1860, William M. Carson, by a deed purporting to be in consideration of the natural love and affection he bore to his son John (a son of Almyra), and for the purpose of advancing his son, and to be made in execution of the power given to him by the deed from Jonathan and George Carson to him, conveyed to his son a part of the property, real and personal, and on the same day John Carson reconveyed the same property to William M. Carson, in consideration of the natural love and affection he bore to his half-brother and sister, in trust for his half-brother and sister, George S. and Catherine. In 1862 William M. Carson diedtestate. By his will he devised and bequeathed the property conveyed to him by John to George S. and Catherine Carson, and appointed John his executor, who qualified and sues as such.

The other parts of the will are not here noticed, because the Court declines in the present stage of the cause to decide the questions arising thereon.

(578)Merrimon for plaintiff.Fowle for defendants.

BATTLE, J.

The main question presented in this case, and the only one which at present we think it proper to decide, arises upon the construction of the deed executed by Jonathan L. Carson and George M. Carson to William M. Carson on 6 May, 1862, in trust for his wife and children. The question is, whether the trust in favor of the children is confined to the children of the trustee's then wife, Almyra, or does it embrace also the children which he had by his second wife, Catherine?

We are clearly of opinion that upon any admissible construction of the deed it includes the children of the first wife only. The recital of the consideration on which the deed was made is the sum of $1 and "the good-will and affection they (the grantors) have for Almyra T. Carson, wife of said William, and the children of the said William and Almyra, namely, John, Martha M., Mary M., Matilda H., and William, and such as they may have hereafter." From this recital it is manifest that the purpose of the grantors to provide for the then wife of the grantee and such children as he and she then had and might have thereafter. The expression, "such as they may have hereafter," is too plain to admit of any other interpretation. In the clause which declares the trust it is said that the grantee shall have and hold the property conveyed "for the sole and separate use of his wife, the said Almyra, and the children as aforesaid, and such as may be born and begotten by the said William hereafter." It is contended for the children of the second marriage that the last words of this clause extend the trust to any children which the grantee might have by any future wife. This would be so ifPage 377the words were to be considered alone, unconnected with anything else in the deed; but that would violate a fundamental rule in the construction of deeds, "that the construction be made upon the entire deed, and not merely upon disjointed parts of it." 2 Bl. Com., (579) 379. These words, "and such as may be born and begotten by the said William hereafter," must be considered with reference to the recital of the consideration, which evidently is the good-will and affection which the grantors had for their brother's wife, Almyra, and the children which he then had and might thereafter have byher. Why the grantors should wish to exclude the children by any future wife we do not know. It may have been an inadvertent omission, but if it were, we cannot supply it.

There is a subsequent clause of the deed which provides "that if the said Almyra shall depart this life before the said William, then and in such case her interest in said property of all kinds is to cease and to determine." This is also urged as a manifestation of intention that she and her children were not the only objects provided for by the deed. It seems clear to us that the only purpose of this clause was to prevent the husband from taking any interest in the propertyjure mariti. The whole deed shows that his brothers thought they could not convey the property or any part of it, to be held by him for himself, and we have no doubt it was for the reason stated in the bill, that he was largely insolvent, and that if the property were conveyed to him without any trust declared in favor of his wife and children it would be taken to pay his debts. It was known to the person who drew the instrument that the equitable estate which the wife was to take in the property would, unless it were provided against, become her husband's upon her death; and hence the clause in question was inserted to prevent that consequence. The making her interest in the trust property cease and determine upon her death had the same effect in favor of her children as the limitation of it over to them would have had. SeeLittle v.McLendon,58 N.C. 216.

In all the clauses of the deed following that which we have just noticed it will be seen that the grantee's wife Almyra and her children were the only persons in the contemplation of the parties to the (580) deed; and such being the case, the hardship of excluding the children of the grantee by his second wife, no matter how great it may be deemed, cannot induce the Court to adopt a construction in opposition to the plain meaning of the instrument.

Having ascertained that there is no trust declared in favor of the children of the second marriage, in the deed executed to William M. Carson by his brothers, we are of opinion that he acquired no right to give such children by deed, will, or otherwise, the property, part of the trust fund which he conveyed to his son John on 6 January, 1860, andPage 378took back by another conveyance of the same date. The deed to John purports to be an advancement to him by his father in execution of the power conferred on him as trustee; but the deed of reconveyance executed at the same time shows that the true purpose was not to advance the son, but the children of the second marriage. The execution of the two deeds is in effect but one transaction, and a court of equity cannot allow a trustee to change the objects of his trust by any such contrivance.

There are other questions presented by the pleadings which we are unwilling to decide without the aid of an argument. One of these questions is, whether the children of William M. Carson by his first wife had, during the lifetime of their father, such an interest in the trust property not advanced to them by their father, as trustee, as survived upon the deaths of some of them to their respective administrators. A second question is, whether the trustee had power to devise and bequeath by his will any part of the trust property to the children of his deceased daughter, Martha Burgin.

These questions will be reserved for future consideration; but there may be a decree now declaring that the defendants Catharine (581) Carson and George S. Carson, children of William M. Carson by his second wife, do not take by the will of their father any part of the property, real or personal, conveyed to their father in trust by his brothers Jonathan L. Carson and George M. Carson, he having acquired no power to devise and bequeath it to them by reason of the conveyances of the same to and from his son John on 6 January, 1860. There may also be a decree for the sale of the land belonging to the trust fund, not specifically given or devised by the trustee to any of his children. And the parties may have a reference for an account of the trust fund, if they desire it.

Decree accordingly.