Vance County NcArchives Court.....Perdue, Powell & Cooper, Mary A. Perdue Et Als V. 1899
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Connie Ardrey n/a December 8, 2011, 8:20 pm

Source: N C Reports
Written: 1899

Mary A. Perdue et als v. Wm. T. Perdue, Silas Powell & D. Y. Cooper

(Decided March 14, 1899)

Will - Charge Upon Lane - Personal Trust

After a testator has devised all his estate, real and personal, to his 
grandson, in fee, the will says: Item 3. It is my will and desire that the 
said William Thomas Perdue shall take care of his grandmother Lundy Falkner, 
and also of his mother, Mary A. Perdue, during their lifetime, and also to 
take care of his two sisters, Jennie A. and Bettie Ann Perdue: Held, that the 
words are merely recommendatory - expressive of personal confidence, and do 
not amount to a trust and charge upon the land, following it in the hands of 
purchasers.

Civil Action, asking for the declaration of a trust in favor of plaintiffs, 
upon a tract of land devised to defendant and W. T. Perdue, by his 
grandfather, James H. Falkner, and conveyed to his co-defendants, Powell and 
Cooper, tried before Brown, J., at Fall Term, 1898, of Vance Superior Court.

His Honor ruled that the words used created no trust or charge upon the land. 
Plaintiffs excepted, and appealed. 

The devise is stated in the opinion.

Messrs. W. B. Shaw and T. M. Pittman, for plantiffs (appellants)
Messrs. A. C. Zollicoffer, T. T. Hicks and A. J. Harris, for defendants

NC Supreme Court Justice Faircloth, C. J. - The following facts constitute the 
case: James H. Falkner died about the year 1888, having first made and 
published his last will and testament, the construction of items 2 and 3 of 
which form the basis of this action by the plaintiffs. The said items are as 
follows:

"Item 2. I will and bequeath unto my grandson William Thomas Perdue all of my 
land and personal property, to him and his heirs and assigns forever."

"Item 3. It is my will and desire that the said William Thomas Perdue shall 
take care of his grandmother, Luncy Falkner, and also of his mother, Mary Ann 
Perdue, during their lifetime, and also to take care of his two sisters, 
Jennie A. and Bettie Ann Perdue."

The grandmother, Lundy Falkner, is dead, and the said Jennie A. and Bettie Ann 
Perdue are now married, and live with their husbands.

The said James H. Falkner died seized and possessed of a tract of land in 
Vance County, containing abut sixty-six acres, which William Thomas Perdue 
mortgaged, and upon default of payment of the debt secured by the mortgage the 
land was, after several years, sold by the mortgagee, and the defendants 
Powell and Cooper became the purchasers, went into possession, and now hold 
the same.

Lundy Falkner is dead, and the question is, does the will make the support of 
the plaintiffs a charge upon the land in the hands of the defendants, or is it 
a personal trust and confidence in W. T. Perdue?

No rule is better settled than that the intention of the testator must govern. 
The intention must be express or implied from the language of the will, 
considered as a whole. We see nothing in this will which implies that a charge 
on the land for the support of the plaintiffs was intended. It is only a 
recommendation or request.

We find no error in the ruling of the Court below.

Affirmed.

Additional Comments:
In the NC Supreme Court February Term 1899

File at: http://files.usgwarchives.net/nc/vance/court/perduepo2129gwl.txt

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