Ramsey v. . Ramsey

The question presented is whether W. C. Ramsey was an agent or trustee of John Ramsey, and that depends on the construction of the following written instrument marked "Exhibit A":

"Know all men by these presents that I, John Ramsey, have this day constituted and appointed W. C. Ramsey my lawful agent and attorney in fact with full power and authority to do and transact all of the business hereinafter named; that is to say, the said W. C. Ramsey is to prosecute in my name a suit I have commenced against R. J. Sams for a certain tract of land, and to have authority to have the deed to the same made to himself, said W. C. Ramsey, and is hereby directed that out of the proceeds of the sale of said lands, which the said W. C. Ramsey is hereby authorized to make, the said W. C. Ramsey is to maintain me and my wife Drucilla, or the survivor of us during our natural life or the life of the survivor of us, and then at the death of the survivor of us, to use the balance of the proceeds of said lands, if any is left, to the payment of such of my children as have not been so much advanced as the others, so as to make my advancements to them agree; the said W. C. Ramsey is to his trouble and expenses in every way paid off and discharged of once about the business where named. (687)

Given under my hand and seal this 31st of August, 1880. (Signed) JOHN RAMSEY. (SEAL.) (Signed) J. M. GUDGER. (SEAL.)

After the pleadings were filed a reference was ordered to state an account between the parties. The referee reported and found that a small balance was due the plaintiff. He also held that under Exhibit "A" W. C. Ramsey was an agent of John Ramsey, who is dead, leaving him surviving his wife and children. The defendant filed exceptions to the report and they were sustained by his Honor, who entered the following judgment, after allowing one or more payments made by the defendant since the death of John Ramsey:

"It is agreed in open court that the money claimed by the plaintiff in this suit went into the hands of defendant under and by virtue of the power of attorney and instrument alleged in and annexed to the answer. The court sustains the exceptions of the defendant, and further finds as a fact that there was no demand for settlement or termination of agency during the lifetime of John Ramsey, the intestate, but demand was made by the administrator before bringing this suit.

"The court further finds that defendant did not receive entire amount charged against him by $25 (see evidence of Tilson), and is therefore entitled to an additional credit for that amount, and that defendant was in no default, but in exercise of ordinary care and prudence in not litigating about the same with Tilson.

"The court therefore sustains all of defendant's exceptions, and finds as conclusions of law that the widow of John Ramsey, now living, is proper owner of any amount due at present by reason of this (688) fund. That the payment of fifty dollars to said widow is a proper payment and should be allowed; that defendant is entitled to an additional credit of $25, the evidence showing that said amount of the compromise money was not received by him, and it is ordered and adjudged that defendant go without day and recover of plaintiff and sureties on his bond [and] costs of the action to be taxed by the clerk, including the sum of $20 to referee."

On the back of the case on appeal is the following endorsement: "I accept service of the written case on appeal, this 13 April, 1898. . . . I agree that the judgment of the court is the case in Supreme Court, 13 August, 1898. J. S. McElroy, attorney for defendant." The defendant elected to take the proceeds of the sale of the land involved in the suit with Sams, instead of taking title to himself. If Exhibit A is construed as only an agency, the plainly expressed intention of John Ramsey would be defeated. Treating it however as a trust, the intention can be fully enforced. Exhibit A is a plain express trust reduced to writing, and does not fall within the class of constructive trusts referred to in Wood v.Cherry, 73 N.C. 110. This is our conclusion in any point of view we can take. That view gives full effect to the kind intention of the husband and father, and it seems that in justice it should be so considered.

Affirmed.

(689)