The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-08

The court held that this was manifestly
an executory trust and did not come
within the rule of Shelly's Case, and that
the daughters took only life estate with
remainder over to their children.
in the leading case of Ham VS.. Ham,
y \. c., 59S,600, relied upon by the
court, the general rule is expressly
qualified by holding that the words
heirs of the body are held to be words
of limitation unless there be some clause
or restriction added, whereby it plainly
appears that the words heirs of the
body',are intended as words of purchase
The qualified Difference to the inten-
ton of the testator is shown in number
less cases throughout the books. only Il
few of which need be cited Allen VS..
Pass. 20 y. c.. n; Moore VS.. Leach
30 Y. c., IS; Thompson VS.. Mitchell
81 \. c., al; Fairbault VS.. Taylor. IS
\. c.. 2f9: Pless VS.. Coble. Ibid 231 ::
Ncwkirk VS.. Halves, Ibid 265: Ward VS.
Jones. 40 n. c.. 400; jenkins VS. Jen-
kins, 96 n. c., 254: Crawford US. Wearn.
115 n. c., $40; Francls VS. Whitaker,
116 n. c.. 51S.
''In Pless VS.. Coble, supra, it was held
that where a testator in n residuary
clause gave the surplus of his property
to Il son and daughter, in these words
and my desire is that such surplus be
equally divided and paid over to my
son A and my daughter. NJ, my will
and desire is that my daughter Us equal
part, in this last devise. to her bodily
heirs, equally to be divided between
them the daughter took an estate for
life. with remainder to her children. y
A long list of cases from other jtirisdie-
tions TO the same effect may be found in
the exhaustive brief of Judge Greene in
Moore VS.. Stones Executors, 10 Graf,
100. 199
THE rule in Shelly's Case is purely
technical rule, and being contrary to
the general spirit of the law. inasmuch
as it tends to defeat the intention of the
testator, should be strictly construed
In the case at bar, we think that the
trust being evolutionary, does not come
within the rule and that Zollie Monta-
que took only life estate in the in
terest or profits Of the fund, the principal
going in remainder to the heirs of Zol-
lie. who are also the heirs of her mother.
Whether they take directly from Zolle
or through the will is immaterial to this
discussion.
THE intention of the testatriX is
plain to us and we think is legally eff
fectuated.
However noble may be the object of
Iollie's bounty, it was not the object of
the bounty of the testatrix She was
seeking to provide for her own children,
and not for the children of others. She
wished those to inherit her property
who inherited her blood. and she fondly
hoped that the results of her thrift and
economy might be enjoyed by those she
had Graded in her lap and heart As
II was her property, we do not feel at
liberty to thwart her will, guided by a
mothers love and written in the letter
and spirit of the law. We think the judg-
ment should be reversed. Reversed"
From this opinion Chief Justice Fair
cloth and Justice Furches dissent. JUS
tice Furches, writing the dissenting opin
ion. says. after quoting the third item
of the will:
1T will be observed that the estate is
given to the daughter Zollie and not to
h. Il. Montague as trustee. 1t was to
be divided equally between my chill
dren, share and share alike how
ever, that the share or shares falling to
my daughters under this will be placed
in the hands of my son. Il. +. MOnta-
que, as trustee, for each of them. The
testatriX does not even give the custody
of the estate to Il. t. Montague. but
provides that it he placed in his hands
as trustee. SO. if this had been real
estate, the Statute of Uses and Trusts
could not have operated to carry the
legal estate TO the cestui que trust. for
the reason that there was no legal es-
tate i'll the trust. 1t is true that the
Statutes of Uses and Trusts has moth
ing to do with the matter under con-
slderation, but it is used in the discus
sion to show that H. II. Montague had
no legal estate in this fund. This dis
tinguishes this ease from Payne VS.
Sale, % n. c.. 400. cited and relied
upon for the plaintiffs. In that case.
the estate was given to the trustees
who held the legal estate, and their
cestui que trust had the equitable es-
tate And the remainder, after the de-
termination of the life estate. was n
legal and not an equitable estate and
the Rule in Shelly's Case could not
operate The relations of Il. +. Monta-
que with regard to this fund were in
the nature of a guardian or manager
of the estate.
Seeing that the estate was given TO
ZolIie and that she was the legal owner
of the same. the Rule in Shelly's Case
applies as is held in Ham VS.. Ham. p