Blake v. Blake, 118 N.C. 575 (1896)

Feb. 1896 · Supreme Court of North Carolina
118 N.C. 575

R. K. BLAKE, et al. v. ANNIE L. BLAKE, et al.

Partition — Devise in Trust.

Where property was left in trust to be divided when the youngest child of the testator should arrive at age, the trustee to use the income for the support of the minor children, partition cannot be ordered during- the minority of the youngest child.

Civil ACTION, brought by plaintiffs for the partition of land, heard before Greene, </., at January Term, 1896, of RobesoN Superior Court. A sale for partition was ordered, made and confirmed, and defendants appealed.

The property sought to be partitioned was devised to the parties by the will of Susan O. R. Blake, as follows :

“ I give, devise and bequeath all my real property and estate of whatsoever description, consisting of town lots, houses, &c., in the town of Lumberton, N. 0., and the land in Britt’s township, in said county, known as the Britts land, to my husband, W. B. Blake, in trust for all my children, to be equally divided between them when the youngest child shall arrive at the age of twenty-one years. I also empower him to use the rents and profits in the support, maintenance and education of such of my children as are infants until they attain their majority. I also hereby invest my husband and trustee, W. B. Blake, with full power to sell and invest in other property or estate such of my property and real estate as is herein devised or any part thereof should it be to the interest of my children so to do, and this devise is subject to the right and power so to do.”

Messrs. MeNeill da McLean,-{ox plaintiffs.

Mr. A. Nash, for defendants (appellants).

*576Clark, J.:

Under the devise in the will, which is-appended to the complaint, the property was left in trust to be “ divided when the youngest child should arrive at age.” That contingency not yet having happened, a division can not be ordered. Green v. Green, 86 N. C., 546. The complaint fails to state a cause of action.

Dismissed.. .