Hardy v. . Hardy , 174 N.C. 505 ( 1917 )

Under the early English and American authorities, language is a will expressive of the wish or desire of the testator as to the disposition of his property was generally held to raise a trust, or to limit the estate devised, unless a contrary intent was manifest from a consideration of the whole will; but the tendency of modern authority is to reverse this rule, and to hold that precatory words "are not to be regarded as imperative unless it is (507) plain from the context that the testator so intended them."

The question is fully discussed and the authorities cited by Connor, J., in St. James Church v. Bagley, 138 N.C. 34; Clark, C. J., in Fellowes v.Durfey, 163 N.C. 305, and by Hoke, J., in Carter v. Strickland, 165 N.C. 70.

Applying this principle, we are of opinion that item 8 of the will of L. M. Hardy does not establish a trust or limit the estates devised in items 2 and 3 of the will.

It does not purport to command, but merely to express a wish, and the testator points out the way in which he hopes his desired object may be attained, which is that M. Langhorne may buy the interest of his sisters by mutual agreement. This recognizes the right of the sisters to sell at their own price, and that the son cannot acquire title except by purchase, thus showing that the desire of the testator that his son should eventually own the home place could only be carried into effect by contract between the parties, with no limitation on the right to contract, and not under any condition imposed by the testator.

He leaves them free to contract on their own terms, but hopes that they may reach an agreement and that his son may buy the home place.

Eliminating, therefore, the eighth item, there is nothing to prevent the plaintiff from conveying a good title to the land in item 2, which is devised to him absolutely; nor do we think the provision in item 3 restricts the right to sell until all the daughters reach the age of 21 years.

There is force in the contention of the defendant that the restriction upon the right to sell is meaningless, unless it was intended that no part of the land should be sold until all the daughters became 21, as no one of them could make a sale until she reached that age, in the absence of the provision, but this cannot prevail against the plain language of the will.

In the first part of the item the land is devised to the four daughters absolutely, to be equally divided among them, and there is no condition annexed to the devise, and nothing in the whole item, requiring the division to be postponed until all became 21 years old. They then had the right to partition at once, and acting upon this construction the parties have had their shares set apart to them in severalty. If so, why should the testator say that a daughter who had reached 21 years, and whose share had been allotted to her, could not sell her lot until another daughter, who owned another share and had no interest in the first, became 21?

Again, the language is, "no one of these," "her interest," (508) "then should she desire to sell," "she shall give," referring to each one as she reaches 21, and not to all the daughters.

Affirmed.

Cited: Laws v. Christmas, 178 N.C. 361; Springs v. Springs, 182 N.C. 487;Greene v. Lyles, 187 N.C. 424; Brown v. Lewis, 197 N.C. 707; Dixonv. Hooker, 199 N.C. 678; Humphrey v. Faison, 247 N.C. 134.