Andrew v. Hughes , 243 N.C. 616 ( 1956 )

91 S.E.2d 591 (1956) 243 N.C. 616

J. P. ANDREW, Lucy W. Andrew, Janle E. Hart, W. E. Hart, Bessie Forrester, Oma A. Turner and J. B. Turner,
v.
Clata A. HUGHES and Roy J. Hughes.

No. 737.

Supreme Court of North Carolina.

February 29, 1956.

Haworth & Haworth, High Point, for plaintiffs, appellants.

Barber & Thompson, Pittsboro, for defendants, appellees.

JOHNSON, Justice.

The single question presented by this appeal is whether the devise to Clatie Andrew is a devise in fee simple, or is a devise in trust for the benefit of the plaintiffs.

The language of the testator indicates a clear intent to create an estate in fee simple in Clatie Andrew (Hughes). His first dispositive statement as to her is: "I will and devise that Clatie Andrew * * shall have all of my real estate, * * * and I do hereby give and devise to my said niece Clatie Andrew * * * to her, her heirs, and assigns in fee simple forever." By the language that follows, which the plaintiffs contend impressed a trust on the land in their favor, the testator was stating the motive for his devise in fee to Clatie Andrew. This is manifest from his further statement, "I do this because * * *, and that is why I am devising it to Clatie Andrew in fee simple * * *."

Here, then, the testator has made an absolute gift to Clatie Andrew. The later words, expressive of motive and confidence and merely suggestive of desire, are precatory in nature and are without mandatory force. The discretion of the legatee is unbridled. She is left to act or not to act "as she may see fit." The ruling below, to the effect that Clatie Andrew took title in fee simple, will be upheld under application of the principles explained and applied in these decisions: In re Estate of Bulis, 240 N.C. 529, 82 S.E.2d 750; St. James Parish v. Bagley, 138 N.C. 384, 50 S.E. 841, 70 L.R.A. 160; Carter v. Strickland, 165 N.C. 69, 80 S.E. 961; Springs v. Springs, 182 N.C. 484, 109 S.E. 839; Brown v. Lewis, 197 N.C. 704, 150 S.E. 328. See also G.S. § 31-38; Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793; Randall v. Randall, 135 Ill. 398, 25 N.E. 780, 25 Am. St. Rep. 373; Story, Eq.Jur. (Fourteenth Ed.), Vol. 3, Sec. 1446; Bogert, Trusts and Trustees, Sec. 48; Perry, Trusts and Trustees, Sec. 119; 54 Am.Jur., Trusts, Sections 54, 56, and 58.

The decisions relied on by the plaintiffs, including Deans v. Gay, 132 N.C. 227, 43 S.E. 643, are factually distinguishable.

Affirmed.