"Whereas I have fifty shares in the State Bank of North Carolina, etc. [setting forth shares in other banks, amounting in all to seventy-six], it is my will that my daughter, Sarah M. Fenner, shall have the profits arising therefrom during her natural life, or until the charters of said banks may expire. I do, therefore, by these presents, leave the said seventy-six shares, in trust, with my executors, and I do hereby authorize them to take charge of the said bank stock, and draw the *Page 200 dividends as they shall become due and payable; and the said dividends, when drawn by my executors, shall be paid over to my daughter, the said S. M. F., for her use and comfort. Whenever the charters of the said banks shall expire (if they shall not again be renewed), I do then give and bequeath the said seventy-six shares to my said daughter, S. M. F., to her and her heirs forever."
(358) The plaintiff then averred that the defendant proved the will; that he, the plaintiff, and the said S. M. F. had intermarried; that the defendant, before the marriage, had regularly paid the dividends upon the stock to S. M. F., and since that event to himself; that S. M. F. was dead, and that letters of administration upon her estate had issued to him. The prayer of the bill was that the stock might be transferred to the plaintiff.
The defendant in his answer admitted every fact charged in the will; but, as matter of defense, stated that S. M. F. was a widow at the death of his testator, and had children who were infants; that under the will of her father, she had received, in addition to the stock above mentioned, a very large personal estate, all of which the plaintiff had received; that her father had also devised to her in fee simple a valuable real estate; that there was no issue of the marriage between her and the plaintiff, and that soon after the marriage the plaintiff had prevailed upon her to join him in a conveyance of her land to a third person, who, according to a previous concert, had reconveyed it in fee simple to the plaintiff; that the conveyance of the plaintiff and his wife, and the reconveyance to the plaintiff, were without consideration the only object being to assure the land to the plaintiff in fee simple absolute, to the injury of the children of his wife by her first marriage, to whom (359) the defendant insisted that in equity and justice they ought to descend.
The cause was heard upon bill and answer. The question made upon the will has no difficulty. The bank stock is bequeathed to the executors, in trust to receive the dividends as declared and pay them over to the testator's daughter during her life, or until the charters expire, and upon that event, unless the charters be renewed, the stock itself is given to the daughter. In her, then, are united the present right to the whole profits, and the absolute ultimate dominion — which gives as perfect a property as is known to the law. The cestui quetrust can call for the legal estate at her will. It is not like the case of a bequest in trust for the maintenance of *Page 201 another. There the trustee must retain the property in order to provide out of the profits for the support of the object of the testator's bounty. He must keep the fund in his own hands, lest it be wasted. But here the fund is to go (eventually) directly to the daughter, and in the meanwhile the whole profits, not as a maintenance to be provided by the executor, but as a general pecuniary legacy. The only purpose of the testator seems to have been to save his daughter the trouble of receiving the dividends personally at the bank, and to give his advice to her to keep that fund in stock as long as she could, in preference to investing it otherwise. But whether that was his intention or not, such is necessarily the construction; for the law will not permit a testator to pass the absolute property and then fetter it, without a limitation over, with restrictions inconsistent with the general ownership created by him. It is one of the first rules of a trust that the cestui que trust can call on the trustee in this Court for the legal estate.
It would give the Court much satisfaction if an equity could (360) be raised on the other point made in the answer; and it is well worthy the consideration of the Legislature. The truth is that by an undue influence, which every husband, either by blandishment or harshness, can exercise over a wife, she may be induced, and most of them are induced, indirectly, to convey their estates to their husbands in the method practiced here. But what can the Court do? It is a legal conveyance of a legal estate, supported by the statute. If not, let it be contested at law, and each party there make the most of his case. But if it be, where is the equity we can go on here? Both the husband and the children are volunteers; and the first in time is best off. Certainly, if the deed were defective, equity would not raise a finger to help it. But if it be valid in law, we are kept equally still; for there is no consideration to set us in motion. If the estate were a mere equity, we would gladly interpose, for our power would be exercised in the protection and not in the restriction of the wife.
PER CURIAM. Let a decree be entered according to the prayer of the bill.
Cited: Battle v. Petway, 27 N.C. 578; Turnage v. Greene, 55 N.C. 64;Johnson v. Prairie, 91 N.C. 162; McKenzie v. Sumner, 114 N.C. 428. *Page 202