#### E. RAMSEY, Administrator of John Ramsey v. W. C. RAMSEY.

(Decided December 23, 1898).

Express Trust.

Civil action heard upon exceptions to report of referee before Holce, J., at Spring Term, 1898, of the Superior Court of Madison County.

The complaint alleged that the defendant as agent of the intestate, John Ramsey, had collected $1845 from one J. P. Tilson, and the sum of $50 from one William Edwards, and upon demand made refused to settle.

' The answer alleged, that the defendant acting under authority in writing- from the intestate, marked exhibit “A” filed as part of the answer, had collected $1818 and had fully disbursed to said John Ramsey and for his use all the monies that came into his hand as agent or trustee, as per itemized account appended — aggregating $1933.23 which amount included $50 paid to the widow, Drucilla Ramsey, since John Ramsey’s death.

And the answer denies that the plaintiff, as administrator has any interest in the fund received by defendant finder the paper writing referred to.

Exhibit “A” is copied into the opinion and is construed by the Court as creating an express trust, and not a mere agency, or implied trust.

The referee reported, that the defendant as agent of John Ramsey, intestate of plaintiff had received $1848 —and had properly paid out on his behalf the sum of $1842.98 and reported a balance due from him of $5.02 in favor of plaintiff, as administrator. The referee excluded the payment of $50 made by defendant to Dru-cilla Ramsey, widow, after the death of her husband.

Defendant excepted.

*686His Honor, at the hearing, sustained the exceptions, and found as a conclusion of law that the widow, now living, is the proper owner of any amount due at present by reason of this fund — and that the payment to her of the $60 was a proper payment and should be allowed — and adjudged that the defendant go without day and recover his costs.

Plaintiff excepted and appealed.

Mr. W. W. Zachary, for plaintiff (appellant).

Messrs. Davidson & Jones, for defendant.

Haircloth, C. J.:

The question presented is whether W. 0. Ramsey was an agent or trustee of John Ramsey, and that depends .on the construction of the following written instrument marked “Exhibit A”:

■ “Know all men by .these presents that I, John Ramsey, have this day constituted and appointed W. 0. Ramsey my lawful agent and attorney in fact with full power and authority to do and transact all of the business hereinafter named; that is to say, the said W. C.Ramsey is to prosecute in my name a suit I have commenced against R. J. Sams for a certain tract of land and to have authority to have the deed to the same made to himself, said W. 0. Ramsey, and is hereby; directed that out of the proceeds of the sale of said lands, which the said W. 0. Ramsey is hereby authorized to make, the said W. C. Ramsey is to maintain me and my wife Drucilla, or the survivor of us during our natural life or .the life of the survivor • of us, and then at the death of the survior of us, to use the balance of the proceeds of said lands, if any is left, to payment of such of my children as have not been so much advanced as the others, so as to make my advancements to them agree, the said W. C. Ramsey is to *687his trouble and expenses in every way paid off and discharged of once about the business where named.

Given under my hand and seal this 31st. of August, 1880.

(Signed) John Ramsey, (Seal.)

(Signed) J. M. Gudg-er, (Seal.)

After the pleadings were filed a reference was ordered to state an account between the parties. The referee reported and found that a small balance was due the plaintiff. He also held that under exhibit “A” W. C. Ramsey was an agent of John Ramsey, who is dead leaving him surviving bis wife and children. The defendant filed exceptions to the report and they were sustained by his Honor, who entered the following judgment, after allowing one or more payments made hy the defendant since the death of John Ramsey:

“It is agreed in open court that the money claimed by the plaintiff in this suit went into the hands of defendant under and by virtue of the power of attorney and instrument alleged in and annexed to the answer. The Court sustains the exceptions of the defendant, and further finds as a fact that there was no «demand for settlement or termination of agency during the lifetime of John Ramsey, the intestate, but demand was made by the administrator before bringing this suit.

The Court further finds that defendant did not receive entire amount charged against him by $25 (see evidence of Tilson), and is therefore entitled to an additional credit for that amount, and that defendant was in no default, but in exercise of ordinary care and prudence in not litigating about the same with Tilson.

The Court therefore sustains all of defendant’s exceptions, and finds as conclusions of law that the widow of *688John Ramsey, now. living, is proper owner of any amount due at present by reason of this fund. That .the payment of fifty dollars to said widow is a proper payment and should be allowed. That defendant is entitled to an additional credit of $25, the evidence showing that said amount of the compromise money was not received by him, and it is ordered and adjudged that defendant go without day and recover of plaintiff and sureties on his bond [and] costs of the action to be taxed by the Clerk, including the sum of $20 to referee.”

On the back of the case on appeal is the following endorsement: “I accept service of the written case on appeal, this the 13th day of April, 1898. ... I agree that the judgment of the Court is the case in Supreme Court, August 13, 1898. J. S. McElroy, atty. for def.” The defendant elected to take the proceeds of the sale of the land involved in the suit with Sams, instead of taking title to himself. If Exhibit A is construed as only an agency, the plainly expressed intention of John Ramsey would be defeated. Treating it however, as a trust, the intention can be fully enforced. Exhibit A is a plain express trust reduced to writing, and does not fall within the class of constructive trusts referred to in Wood v. Cherry, 73 N. C.; 110. This is our conclusion in any point of view we can take. That view gives full .effect to the kind intention of the husband and father, and it seems that in justice it should be so considei’ed.

Affirmed.