Carson v. Carson, 60 N.C. 24, 1 Win. 24 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 24, 1 Win. 24

JOHN CARSON, Exr. of W. M. CARSON and others against GEORGE S, CARSON and CATH, CARSON, and others.

Where ■ a deed recites that it is made in consideration of good will and affection to A the wife of B, and the children of A and B, namely, C, D, Ac., and puch as they may have hereafter, and property is conveyed fey it to B in trust “for the children aforesaid and such as may be born and 'begotten by the said B hereafter.” The trust is for the children -of A and B, and the children of B by an after taken wife, have no interest in the trust property.

B having power by the deed to him. to advance the children ot himsel* aad A by' conveying to them or any of them, a portion of the true1 property, on the Cth January, 1850, eonvrys to his son John, a child o himself and A, a part of the trust property by way of advancement, as the deed declares, aud on the same day John re-conveys to B the same property in consideration of the natural lov.e and affection he bears his half brother and sister, the children of his father by an aftet taken wife, in trust for his half brother and sister, with power to B to convey the property to the cesiue que trust by deed or will, and B by his will does devise and bequeath the property to his said two children, his will is inoperative, andthe children by the last marriage take noth"'' ing under the deed from John. ’

The case of Li tile t'«. McLendon,5 Jones Eq. 219, cited and approved. T]

In May 1842, Jonathan L. Carson and George M. Carson conveyed to William M. Carson. lands, slaves, and other personal property, by a deed which recites that it is made in consideration of the sum of one dollar,- and tljie farther consideration of the good will and “ affection the grantors have for Almyra Carson, the wife of William Carson, and the children of the said Almyra and William namely, John, Martha M, Mary M, Matilda A, and William, and such as they may have hereafter.” After describing the property and limiting it to the grantee, his heirs, administrator, &c., the deed, declares “that the said William shall hold and- possess 'the property for the sole1 and1, separate use of Ms wife, tbe said Almyra, and the children aforesaid, and such as may be born and begotten by the said William hereafter, “ and shall have power to receive and appropriate the proceeds, &c., towards the mainten anee of his said wife and the children aforesaid, and such as he may have hereafter, and shall have power to apply the same1 towards the education of the said children, and as they come to years of maturity to advance the same with such part of the said-property and its increase as to Mm- shall seem meet,” “and it is also provided, fhat'in case the said Almyra shall depart this life before the said William, then her interest in said property of all kinds is to cease and determine, and the said Williamfshall not only have power by deed to advance Ibis said children out of said property in his lifetime, but he is hereby fully authorized at his death, by last will and testament, to devise and bequeath tjie said property and its increase to his wife and such of his children as he shall deem right, and in ease he shall die without a last will and testament, then the said property, if his said wife be 'alive; shall be divided according to the laws regulating descent and, dower,: and the laws distributing personal estate, and the said William is nst to be liable to account to his said children. It being the true intent of this conveyance to provide for the wife of the said William and his present and future children, and to allow him to apply the property at his discretion to the benefit, support, nurture, education, and advancement of said’wife and his present and future children.”

Mrs. Almyra Carson died in 18 and William M. Carson married again and had two children of the.second marriage, the defendants, George 8. and Catharine.

On the 6th day of January, 3860, William M. Carson, by a deed purporting to -be in consideration of the natural love and affection he bore to his son, John, (a son of Al-myra,) and for the purpose of advancing his son, and to be made in execution of th@ power given to Mm by the deed from Jonathan and George Carson to him, conveyed to his son a part of the property real and personal^ and, on the same day, John Carson re-conveyed the same property to William M. Carson, in consideration of the nMural love and affection he bore to his half-brother and sister, in trust for Ms half-brother and sister, George S and Catharine. In 3862 William M. Carson died testate. By Ms will he devised and bequeathed the property conveyed to Mm by John, to George S and Catharine Carson, and appointed John his executor, who qualified and sues as such.

The other parts of the will are not here noticed because the court declines in the present stage of the cause to decide the questions arising thereon,

Merrimon for the plaintiff.

Pótele for the defendants.

Battle, J.

The main question presented in this cáse, and the only one which at present we think it proper to decide, arises upon the construction of the deed executed by Jonathan L. Carson and George M. Carson to William M. Carson, on the 6th of May, 1842, in trust for his wife •and'Children. The question is whether the trust in favor ■ of the children, is confined to the children of the trustee’s then wife Almyra, or does it embrace ako the children which he had by his second wife Catharine.

• We are clearly of opinion, that upon any .admissible construction of the deed, it includes the ehildf’en of the first wife only. The recital of the consideration on which the •deed was made is the sum of one dollar, and “ the good will and affection they (the grantors) have for Almyra T. Carson, wife of said William and the children of the said William and Almyra, namely John, Martha M, Mary M, Matilda EL and William, and such as they may have here after.” From this recital it is manifest that the purpose of the grantors to provide for the then wife of the grantee and such children as he and she then had and might have thereafter. The expression “such as they may have hereafter,” is too plain to admit of any other interpretation. In the clause which declares the trust, it is'said that the grantee saall have and hole the property conveyed “ for the «ole and separate use of his wife, the said Almyra, and the children as aforesaid, and süch as may be born and begotten by the said William hereafter.” It is contended for the cnildren of the second marriage, that the last words oí this clause, extend the trust to any children which the grantee might have by sny future wife. This would be so, if the words were to be coosidered alone, unconnected with any thing else in the.deed; but that would violate a fundamental rule in the construction of deeds, “ that the construction he made, upon the entire' deed, and not merely upon disjointed parts of it.” 2 Bla. Com. 379. These words “ and such as may be horn and begotten by the said William hereafter,” must he considered with reference to the recital of the consideration, which evidently Í3 the good will and affection which the grantors had for their brother’s wife Almyra, and the 'children which he then had and might thereafter have by her. Why the grantors should wish to exclude the children by any future wife,, we do not know. It may have been an inadvertent omission, but if it were, we can not supply it. '

There is a subsequent clause of the deed which provides “ that if the- said Almyra shall depart this life before the said William, then j,nd in such ease, her interest in said property of all kinds is to ceasé and to determine.” This is also urged as a manifestation of intention, that she and her children were not the only objects provided for by the deed. It seems clear to us1 that the only purpose oí this clause was to prevent the husband from.taking any interest in the property Jure mariti. The whole deed shows that his brothers thought they could not convey the property or any part of it, to be held by him for himself,, and wé have no doubt it was for the reason stated in the bill, that he was largely insolvent, and that if the property were conveyed to him without any trust declared in favor of his wife and children, it would be taken to pay his debts. It was known to the person who drew the instrument that the,equitable estate which the wife was to take in the property, would, unless it were provided against, become her husband’s upon her death ; ánd hence the clause in question was inserted to prevent that consequence., The making her interest in the trust progerty cease and determine upon her death, had the same effect in favor of her children, as the limitation of it over to them would have had. See Little vs. McLendon, 5 Jones Eq. 216.

In all the clauses of the deed following that which wo have just noticod, it will be seen that the grantee’s wife Almyra and her children were the only persons i'a the contemplation of the parties to the deed ; and such being the case, the hardship of excluding the children of the grantee by his second wife, no matter how great it may be deemed, can not induce the court to- adopt a construction in opposition to the plain meaning of the instrument*

Having ascertained- that there is no trust declared in favor of the children of the second marriage, in the deed executed to William M. Carson by his brothers, we are of opinion that he acquired no right to give to such children by deed, will, or otherwise, the property,, part of the trust fund, which he convened to his son John on the 6th day of January, 1860, and took back by another conveyance of the'same date. The deed to John purports to be an advancement to him by his faiher in execution of the power conferred on him as trustee : but fhfe deed of're-conveyance executed at the same time, shows that the true purpose was hot' to advance the son, but the children of the second marriage. The execution of the two deeds is in ef-feet bat one transaction, and a court of equity can not allow a trustee to change the objects of nis trust bv any such contrivance. -

There are other questions presented by the pleadings, Which we are unwilling to decide without the aid of an argument. One of these questions is, whether the children of Willian M, Carsen by his first wife, had during the lifetime of tneir’father, such an interest in thé trust property not advanced to them by their father as trustee, as survived upon the deaths of some of them to their respective ad-minisirators. A second question is, whether the trustee had power to devise and bequeath by his will any part of the trust property to the children of his deceased daughter Martha Burgin.

These questions will be reserved for future consideration : but there may be a decree now declaring that the defendants Catharine Carson and George S. Carson, children of William M. Carson by'h’.s second, wife, do not take by the will of their father any part of the property real or personal conveyed to their father in-trust by his brothe’M Jonat'-.ni L. Carson and George M. Carson, he having acquired no power to devise and bequeath it to them by reason of the conveyances of the same to and from his sbn John on the 6th of January, 1860. ’ There may also bo a. decree-for the sale of the land belonging to the trust fund, not specifically given or devised by the trustee to any cf Ms children. And the parties may have a reference for an account of the trust fund, if they desire it.