Batchelor, Adm'r v. . MacOn . , 69 N.C. 545 ( 1873 )

Pearson, C. J.

We consider it useless to make any reference to the many cases cited on the argument, except to remark that “ every tub must stand on its own bottom.”

In the construction of wills the object is to find the intension of the testator. This must be done by a consideration iof the words of the will, and by such other evidence as it is competent for the Court to hear in aid of its “ search for truth.”

Public policy requires that the alienation of land should be as free as any other article of property, so that its transfer .and devolution may be as little clogged by “limitations over conditions,” and “ trusts,” as other subjects of traffic ; hence we take the position 'that whenever a donor by deed -or will, gives an estate to “ one and his heirs forever,” direct words must be used in order to have the effect of cutting the estate down to a life estate, or what is in effect the same thing, and that no expression of a request, or hope, or expectation can be allowed to have that effect.

If a donor or testator has formed a fixed purpose to curtail the estate of the donee or devisee by a limitation-over, a condition or trust, it is very easy for him to say: “ In the •event that my son should die without issue living at his death, the land is to belong to his brother or to such of my .grandchildren as he may by his will direct, and on failure >of such appointment, then to my right heirs.

In this will there is no clog or qualification of the kind, but simply a request that her son would do so and so, which he did not comply with.

John Faulcon was, in respect to this land, the primary object of the testator’s bounty, and the idea that while professing to give him the absolute estate in fee simple, she had a covert purpose' of subjecting his estate to a trust so that he could not sell, or charge with the dower of a wife, or make leases to be valid after his death, or have any inducement to make improvements, or right to obtain credit, on the footing of being the owner of the property, is one that we cannot entertain; it would be mockery by a mother to her son.

We declare our opinion to be that John Faulcon had an estate in fee simple absolute under the will.

Per Curiam. Judgment accordingly-.