The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-08
AN IMPORTANT
WILL DECISION
Application of the Rule in
SheIly's Case,
IN AN FXECU TORY TRUST
DOES NOT APPLY TO PERSONAL
PROPERTY.
INTENTION or TIE EXECUTOR REGARDED
Technical Rules Must be Strictly Construed The
Baptist 0rphanage at Ihomasville
Loses Over ST, D by
This Decision.
Ibis Decision.


AS already noted in this paper, Il case
(Sally Hooker ct III VS.. Il. +. Montague
Of aD of much more than usual inter-
est especially to the legal fraternity,
was Tuesday decided by the Supreme
court
This action depended upon the con
struction of the VIII of Mrs. \. T.. Mon
tague, of Wake Forest, mother of plain
tiffs and defendant, h. +. Montague.
Zolle Montague, one of the daughters
of the testatriX, died i'll August, $3.50,
never having married, and without leav-
ing issue of her body. before she died,
she made and executed last will and
testament, by which she wilied re-
mainder of her estate. amounting to
some $1,000. to the Baptist Orphan
age at Thomasyille.
The plaintiffs are the brothers and
sisters of the testatriX, Zollie Montague,
and they contend that under the will of
the mother. Mrs. A. Il. Montague, the
said Zollie took only Il life estate and
had no interest to dispose of by her
will and that the plaintiffs are entitled
to the same, under the will of the
mother. Mrs. A. +. Montague. or as her
next of kin and distributes.
The opinion of the court on this case
is written by Justice Douglass and is
rs follows:
I'VE are of the opinion that the devise
N question does not come under the rule
in Shelly's case so as to rest in Iollie
Montague the absolute title to her por-
ton of the fund arising from her moth
ers WILL The will of Zollie Montague
is not now under consideration. as ii
is admitted that it legally disposes of all
property of which she had right to
dispose. The contest arises solely un-
der the will of the mother. Mrs. A. T..
Montague whom we shall hereafter call
the testatrix. The third item of her
will is as follows:
THAT all my property, real. personal
and mixed, be converted into money and
divided equally among my children,
share and share alike. with this restric-
ton. however, that the share or shares
falling to my daughters under this will
be placed in the hands of my son, b. It.
Montague. as trustee for each of them.
and that he shall hold the same for and
during the natural life of each one re-
spectiyely, and pay each of them the
said fund, during the life of each, and
to their individual heirs at law after the
death of each of my daughters respec-
lively"
]" Item 4. ] appoint my son. Il. f..
Montague. my sole executor to execute
this will as he may deem best
1t will be seen that Il. +. Monta-
gue was both executor and trustee. but
w no IF "A. 80
the other began, it is difficult to deter
mine. IN any event he had the abso-
lutte control of the property and was
charged with responsible duties in the
management thereof. He was required
to sell the property, real and personal.
convert it into money, apportion the
fund between the legatees. paying to
each son his share and retaining the
shares of the daughters, invest the shares
of the daughters so as to produce an
income, pay each the profit arising from
her share during her entire life, and
then after her death to pay to her i'm
diyidual heirs something, but whether
the principal or only the interest does
not clearly appear. All this he was to
do as he may deem best
mo part of the principal could go into
the hands of Zollie whose share we are
now particularly considering. but must
he retained and managed by her brother
For the purposes of this trust, when
he ceased to be executor he became go
Instant trustee. and in our opinion held
the legal title with the actual possession
and the right of possession.
ut is said that the testatrix does not
even give the custody of the etsate to
b. +. Montague, but provides that it
be placed in his hands as trustee What
is the difference? Surely no one else had
the custody Again, it is said that the
relations of Il. +. Montague with regard
to this fund were in the nature of a
guardian or manager of the estate This
means nothing to our mind beyond an
eXecutory trust. If he was q mere man
ager he must have been an agent for
some principals but for whom? He was
not Iollie's agent, for he was neither her
appontee nor subject TO her direction;
neither was he her guardian, for she
was apparently of lawful age A trust
loses none of its essential attributes by
being denominated Il quasi guardianship
of Il special fund.
1T is well established principle that
eXecntory trusts do not come within the
operation of the rule in Shellys Case:
and it is difficult to distinguish this case
from that of Saunders VS. Edwards. So
\. {. 134. There the will provided that
AS TO my property. my will and de-
sire is that, after my death, it may all
be equally divided among my children,
share and share alike, but in the distribu-
ton it is my will and desire that the
portions falling to my daughters, Jane
Boykin, Amanda Edwards and Eugenia
Rlackwood, should be secured and settled
mon them, the said daughters and their
children respectively: and the more ef-
fectively TO carry into execution this
my will and desire, in regard to the
division that may fall TO my daughter
aforesaid. | give and benueath such lots
and divisions as may fall to them from
the equal division of my property as
aforesaid. unto my beloved friend, Ash
ley Saunders, TO hold in trust for the
sole use and benefit of them. my said
daughters and their heirs forever. to
him and his heirs in trust as aforesaid.