#### JOHN JOHNSON v. W. Z. BLAKE et als.

(Decided March 7, 1899).

Trust — Estate—Married Woman.

1. The general rule is that trust estates are governed by the same rules and limitations that legal estates are.

2. Where land was conveyed in fee simple to a trustee to hold for the sole and separte use of a married woman — to allow her to live upon it, or retain the rents and profits thereof, free from the interest of her present or any future husband, as completely as if she were feme-sole — and to sell and reinvest the proceeds in other personal or real estate, to be held upon the same terms and trust as specified herein, and no other: Held, that this created a fee simple trust estate in her, which at her death descended to her heirs, and that there was no resulting trust in favor of her husband, although his money may have paid for the land. Holmes v. Holmes, 86 N. C., 205.

Civil AotioN, to foreclose a land mortgage, tried before Timberlahe, J., at February Term, 1898, of Wake Superior Court.

The plaintiff claimed as mortgagee of Richard Einnell, who had purchased the property from Sion II. Rogers, and had it conveyed to E. A. Johnson, in fee-simple, for the sole and separate use of Mary A. Einnell, his wife. The terms of the trust are quoted in the opinion. The plaintiff claimed that Mrs. Einnell took but a life interest in the trust estate, and that at her death the fee-simple interest reverted to her husband, by reason of his having paid the purchase money. The mortgage was made after her death.

After the execution of the mortgage, the -heirs of Mrs. Einnell filed a proceeding for the sale of the land for partition. A commissioner was appointed and made the sale, and *107W. Z. Blake became tbe purchaser. He also obtained a deed for any outstanding interest from tbe beirs of Sion IT. Rogers. Richard Einnell and tbe trustee, E. A. Johnson, are both dead.

At tbe close of plaintiff’s case, tbe defendant demurred to bis evidence, and moved for judgment as in case of nonsuit against tbe plaintiff. Motion allowed.

Exception and appeal by plaintiff from tbe judgment.

Mr. 8. G. By an, for plaintiff (appellant).

Messrs. W. N. Jones and J. H. Fleming, for defendant.

Eueohes, J.

In 1857 Sion H. Rogers conveyed tbe land in controversy to E. Johnson in fee-simple, “to bold .the same 'for tbe sole and separate use of Mary Ann Einnell, wife of Richard Einnell, and to allow her to live upon tbe same, or retain tbe rents and profits thereof free from tbe interest of her present or any future husband as completely as if she were feme sole, and to sell and reinvest tbe proceeds in other personal or real estate, to be held upon tbe same terms and trust as specified herein and no other.”

Rogers, tbe grantor, Johnson, tbe grantee, Mary Ann Ein-nell and Richard Einnell are all dead. After tbe death of Mary Ann, Richard Einnell executed a mortgage, conveying said land to tbe plaintiff as a security for debt, and plaintiff claims under this mortgage. After tbe death of both Mary Ann and Richard Einnell, said land was sold by order of Court, as tbe land of Mary Ann, for partition between her children and beirs-at-law, and defendant became tbe purchaser at said sále, and claims thereunder. Defendant has also bought and is the owner of any estate the said Rogers may bave bad in said land, by way of a resulting trust. The plaintiff offered Mrs. Jones, former wife of E. Johnson, tbe *108trustee, wbo testified tbat after tlie death of Richard Einnell, she heard her husband say that “Dick Einnell’s money paid for the land.” Plaintiff also introduced one Thompson, who testified that he “heard Eldridge Johnson (the trustee) say that he held the land for Mary Ann Einnell, but that Richard Einnell’s money paid for the land.” This witness further testified that he knew Mrs. Einnell and did not think she had any money. This evidence was all objected to by the defendant, but allowed by the Court. Upon this evidence the plaintiff rested his case, and “defendant demurred to the plaintiff’s evidence and moved for judgment, as in case of nonsuit.”

Defendant’s motion was allowed and plaintiff appealed from the judgment pronounced.

The defendant’s exceptions to evidence can not be considered, for the reason that he did not appeal.

The plaintiff contends that the deed from Rogers to Johnson only declared a trust in Mrs. Einnell for life, and that this evidence proved or tended to prove that Richard Einnell, under whom he claims, paid the purchase money, and that upon the death of Mrs. Einnell he became the owner of this land, as the presumptive or resulting cestui que trust, and that it was error in the Court not to submit an issue to the jury as to whether Richard Finnell paid the purchase money or not.

We can not say that this evidence (its admissibility being out of the way) did not tend to prove that Richard Einnell paid the purchase money. Therefore if it was material for the plaintiff to prove that Richard paid the purchase money, there was error in the Court not to submit it to the jury.

There is no question but what the deed from Rogers to Eldridge Johnson conveyed the legal estate in fee-simple and that a trust was declared in favor of Mrs. Einnell. But *109whether that trust was in fee-simple or for her life only, is the principal question in the case.

The general rule is that trust estates are governed by the same rules and limitations that legal estates are. But it is said that there are some exceptions to this general rule. Holmes v. Holmes, 86 N. C., 205. In that case the legal estate was conveyed in fee-simple to trustees “in trust for Sarah Moore,” and it was held that this created a fee-simple trust estate in Sarah. If this case is controlled by Holmes v Holmes, Mrs. Einnell had the fee-simple estate and the plaintiff can not recover.

But the plaintiff says that this case is not controlled by Holmes v. Holmesj that the terms creating the trust in this case differ from those contained in that case; that they are substantially the same as those creating the trust in Livey v. Griffis, 65 N. C., 236, and that this case is governed by Livey v. Griffis.

In Livey v. Griffis the legal estate is conveyed in fee-simple to Briggs “ in trust for the sole, separate and exclusive use and benefit of Caroline Nicholson, free from the control of her present or any future husband, with the right of the said Caroline to dispose of the said piece or lot of land to any person she may wish by deed or appointment in writing in the nature of a will.” Anderson Nicholson was the husband of Caroline when this deed was made, and paid the purchase money. Anderson died intestate, and then Caroline died intestate without having made any disposiiton of said land. The plaintiff was a daughter of the said Anderson and his heir-at-law, and the defendant was a son of said Caroline and her heir-at-law. It was held that Caroline had only a life estate coupled with a power of appointment which she never exercised; and that, as Anderson paid the purchase money, tire trust “resulted” to him, and the plaintiff being his heir *110was entitled to tbe land. If Livey’s case controls tbe case, under consideration, tbe plaintiff is entitled to tbe land.

It will be observed tbat tbe language used in tbe deed under consideration differs to some extent from tbat used in Holmes v. Holmes, and also from tbat used in Livey v. Griffis. In Holmes’ ease tbe declaration of tbe trust was simply “to Sarab Moore” and tbis was beld to pass tbe fee-simple. In Liver’s case it was to tbe separate use and benefit of Caroline Nicholson, free from tbe control of ber present or future husband, with tbe power to dispose of tbe fee simple in writing, as by will. It will be seen tbat tbe trust estate in Caroline is limited to a life estate, by giving ber tbe power to convey tbe estate in fee-simple by deed, or in writing, as by will. Tbis power of appointment is inconsistent with tbe idea tbat she was tbe fee-simple owner, and by implication limits the trust estate to an estate for life.

In tbe. case under consideration, tbe fee-simple in tbe legal estate is conveyed to tbe trustee Johnson “to bold the same for tbe sole and separate use of Mary Ann Einnell, wife of Richard Einnell, and to allow her to live upon tbe same, or retain the rents and profits thereof free from tbe interest of ber present or any future husband, as completely as if slie were feme sole, and to sell and reinvest tbe proceeds in other personal and real estate, to be held upon tbe same terms and trust as specified herein, and no other.”

Tbis declaration of trust to Mrs. Einnell contains more words -than are contained in tbe declaration of “trust to Sarab Moore” in Holmes v. Holmes. But none of them, by construction or implication, in any way limit her estate. She is to do nothing. Whatever is to be done is to be done by the trustee, and not by ber. ' Tbe trustee may allow ber to live upon tbe trust estate, to receive tbe rents and profits, and tbe trustee may sell and reinvest in other properties, but be *111is to bold tbe new estate (if a sale and reinvestment should take place) under tbe same trusts and conditions as tbe original trust, and no other.

As we find nothing in this deed to limit tbe trust estate to Mrs. Einnell, it seems to us that it falls within tbe rule declaring tbe trust estate in Holmes v. Holmes, and is governed by that case. This being so, Richard Einnell bad no estate to convey to tbe plaintiff and tbe judgment of tbe Court below is affirmed.

Affirmed.