#### BESSIE W. RICKS v. JESSE P. WILSON and JULIA H. WILSON.

(Filed 8 March, 1911.)

1. Deeds and Conveyances — Husband and Wife — Purchaser—Parol T rust.

When a husband pays the purchase money for lands and has the conveyance thereof made to his wife, the law presumes that the lands are intended for a gift, or a provision made for her by him, and such facts alone are insufficient to impress the lands with a trust in his favor.

2. Deeds and Conveyances — Grantor—Parol Trust.

A conveyance of lands made by a father to his son without a consideration cannot impress the lands with a parol trust in favor of the father, however full and explicit the words may *283llave been to that effect used at the time of the delivery of the deed; for a grantor, in delivering a deed, cannot retain control of the property, and by parol create a trust thereafter to be enforced in his own favor.

3. Deeds and Conveyances — Married Women — Parol Trusts — Privy Examination — Constitutional Law.

A conveyance by a married woman of her lands cannot be impressed with a parol trust contrary to the intent expressed in her written deed. The law requires a written instrument, with the husband’s written consent, and her privy examination, for her to pass an interest of this character in her lands.

4. Deeds and Conveyances — Parol Trust — Infants—Ratification— Execution of Trust.

Having failed to show a parol trust in her favor under a deed to lands purchased by her father, but conveyed to her mother, plaintiff seeks to establish a lost deed made by her father, mother, and brother, defendants in this action, creating the trust interest for her in the lands, the title to the lands having previously to the execution of the alleged lost deed been conveyed by the father and mother to the brother, the latter of whom, at the time of the execution of the alleged lost deed, was a minor: Held, (1) the title in the lands being in the brother at the time in question, it was necessary for him, upon coming of age, to have ratified his deed made in his minority, and his answer denj--ing its execution by him was an act of repudiation; (2) the doctrine that a minor may execute a valid deed in pursuance of a trust has no application.

5. Deeds and Conveyances — Parent and Child — Parol Trust — Wills— Paper-writing — Evidence.

A husband purchased certain lands and had the deed made to his wife, who thereafter by a proper deed, with her husband, conveyed the land to their son in fee simple. The plaintiff, their daughter, sought to impress the lands with a parol trust in her favor: Held, the will of her deceased father and a paper-writing executed by him, purporting to show that the title to the land was put in the son only for the purpose of an equitable division, were incompetent evidence; and therefore it was irrelevant to prove that such papers had been executed and destroyed in pursuance of a conspiracy to defraud plaintiff of her rights.

6. Wills — Lost or Destroyed — Probate—Continues in Force.

A will lost or destroyed before probate remains and continues in force as a will, the difference being the degree of proof required to establish it.

*2847. Wills — Probate—Limitation of Actions.

The statute of limitations does not apply to the mere taking of a probate.

8. Executors and Administrators — Accounting—Parties—Procedure —Evidence.

The plaintiff alleges that her father died in possession of a large amount of personal property, which the defendants, her mother and brother, had wrongfully appropriated. The plaintiff and her brother were the only children and heirs at law. The mother was the executrix of her husband, but was not made a party in her administrative capacity in this action, the purpose of which was to establish a trust in plaintiff’s favor, in her father’s land: Held, the plaintiff is not entitled to an accounting ; her remedy in that respect is to bring an action against the administratrix and her brother, the other heir at law, for an accounting and settlement of the estate, wherein evidence may be offered as to sums of money or other property which the administratrix has received or should have received, and with which she is properly chargeable.

Appeal front Ward, J., at September Term, 1910, of Pitt.

At tbe conclusion of tbe evidence a motion to nonsuit was sustained. Plaintiff excepted and appealed.

Tbe facts are sufficiently stated in tbe opinion of Mr. Jusiiie-Brown.

Guión & Guión, Harry Skinner, and F. G. Harding for plaintiff.

Jarvis & Blow, Moore & Long, a/nd Ay cock & Winston for defendants.

Brown, J.

Tbis cause came before us upon a demurrer to tbe complaint, wbicb was overruled and tbe defendants directed to answer. Tbe case appears in 151 ,N- C., 46, wbicb is referred to for tbe general outlines of tbe plaintiff's allegations. Since tben tbe plaintiff bas filed an amended complaint in wbicb sbe sets out ber demands with mucb particularity and embodies in ber pleading eleven prayers for judgment. As tbe several forms of relief asked are dependent upon tbe establishment by tbe plaintiff of a few leading propositions, it will not be necessary to consider ber various demands seriatim.

*285There are some exceptions to the t evidence presented upon the record, but, in the view we take of the ease, it is unnecessary to consider them, as we have taken into account all the evidence offered by the plaintiff or relied upon to support her contentions, whether admitted or not.

1. It is contended by plaintiff that ‘her father, Robert T. Wilson, during his lifetime purchased and paid for certain valuable lands in the county of Pitt, including- a tract called the McDowell land; that while the purchase money was furnished and paid by her father, the deed was made, at her father’s request, by the vendors to his wife, the defendant Julia, who is plaintiff’s mother.

It is further averred that the defendant Julia held the said lands in trust for her said husband, and that on 23 January, 1899, R. T. Wilson and his said wife executed and delivered to their son, the defendant Jesse P. Wilson, a deed conveying said lands to him; but that at the time of, as well as before, the delivery of said deed, the grantors therein impressed upon the title a parol trust binding upon the grantee and accepted by him, to the effect that the said Jesse P. Wilson should receive and hold the naked legal title to said lands in trust to convey the same to whomsoever the said R. T. Wilson, grantor, should direct and appoint, either by deed, will, paper-writing, or orally, for the purpose of making a proper and equitable division of the lands conveyed and of other property, personal, real, and mixed, of which the said R. T. Wilson was seized and possessed, between his two children, the plaintiff Bessie and the defendant Jesse P. Wilson.

There are insuperable obstacles to the establishment of this alleged trust. Assuming, for the sake of argument, that it is competent to fasten such a trust upon the wife in behalf of her husband, there is no evidence whatever in this record tending to establish it, or that she accepted the lands other than as a gift or provision made for her by her husband. The mere fact that the husband paid the purchase money and had the deed made by the vendor to his wife does not' create a resulting trust in his favor. While it is an established principle of equity *286that an equitable interest in land is drawn “as if by irresistible magnetic attraction” to tbe one wbo pays tbe purchase money for it, this principle does not apply where the husband furnishes the money and has the deed made to the wife.

The law presumes in such case that the property is given as a gift or provision for the wife’s benefit, as the husband is under a moral as well as legal obligation to support her. Thurber v. LaRoque, 105 N. C., 307; Flanner v. Butler, 131 N. C., 153. This principle is reversed where the wife supplies the purchase money and the deed is made to the husband, in which case a trust results in her favor.

There is abundant evidence that R. T. Wilson attempted, when he delivered the title deed to his son, to impress upon it the trust averred in the complaint. Whatever may be the moral obligation of the son to heed and carry out the wishes of his parent as a trust which the law can enforce, it must fail.

The principle is well established in this State that where the grantee accepts a deed for property for which he himself pays nothing, under agreement, accompanying the delivery, that he will hold the same for the benefit of or convey the same to a third person, a parol trust is created in favor of the latter. But it is held that the grantor, in delivering a deed, cannot retain control of the property and, by parol, create a trust to be thereafter enforced in his own favor. Gaylord v. Gaylord, 150 N. C., 222. But, assuming, as is contended, that the trust-attempted to be created was not solely for the benefit of R. T. Wilson, but to secure a fair division of the property between his two children, we have shown that the land did not belong to R. T. Wilson, but to his wife; and how could he impress a trust upon her property?

It cannot be successfully contended that the real estate of a married woman can be passed contrary to the intent as expressed by her in a written deed, because she sat silently by and heard her husband state before and after the execution of the said instrument that part of the lands thereby conveyed were intended for some person whose name does not appear in the written instrument. The husband is not his wife’s agent, *287and his admissions do not bind her. Strother v. R. R., 123 N. C., 198; Thurber v. LaRoque, supra; Smith v. Bruton, 137 N. C., 80.

Assuming that the vague expressions uttered by the wife on tbe occasion were sufficient to impress a trust upon tbe land in tbe bands of ber son, wbicb we do not admit, a woman under coverture cannot create a trust by parol or in any other manner except by embodying it in a written instrument, witb her husband’s consent, to wbicb ber privy examination must be taken as required by our law. This is tbe logical deduction from all of our numerous decisions. Farthing v. Shields, 106 N. C., 289; Thurber v. LaRoque, supra, and cases cited. She can only dispose of or encumber ber real property in tbe way prescribed by tbe Constitution and statute-law of tbe State. •

It not only follows as tbe logical result of our many and uniform decisions, but it is held elsewhere, and stated by text-writers, tbat a married woman cannot, where ber legal status- and to convey is regulated as in this State, create a parol trust in land, and that to do so would be but a subterfuge to evade tbe provisions of tbe statutes protecting her. Tbe privy examination, absolutely essential to tbe validity of tbe conveyance, can only extend to what appears to tbe examining officer upon tbe face of tbe instrument. Cord Legal and Equitable Rights of Married Women, sec. 689; Lewin on Trusts, p. 23. “This principle,” says tbe learned editor of A. and E. Enc., “would surely apply to tbe creation of a trust of ber own property, but, qucere, whether applicable to ber declaration as to property of wbicb tbe beneficial interest was never in ber.” Vol. 28, p. 881, note 5, and cases cited, 16 Cal., 534. This is based upon tbe theory tbat tbe creation or declaration of a trust in lands is a conveyance of an interest therein. Hence, tbe same reason wbicb renders tbe deed of a married woman void as a conveyance of tbe title would render void an attempted declaration of a trust by her.

This is held by the courts in States having statutes similar to ours. Tatge v. Tatge, 34 Minn., 272; 65 Pa. State, 386; Purcell v. Goshorn, 17 Ohio, 105.

*288It would seem, therefore, that the plaintiff must fail in her first contention.

2. The next contention of the plaintiff is that R. T. Wilson and the defendants Julia H. and Jesse T. Wilson, in the year 1900, executed and delivered to her a deed in fee for the McDowell land, and that said deed has been either destroyed or lost. Plaintiff asks that said deed be established by the judgment of the court, that she recover the McDowell lands, and that defendant Jesse account to her for the rents and profits thereof.

There is evidence by the plaintiff that a deed to her for the McDowell land was executed in August, 1902, by her father and the two defendants and delivered'to her; that it was proven before a justice of the peace, and that it has been lost or destroyed and never recorded. The execution of such instrument is denied.

At the time of the alleged execution of said deed the legal title to the McDowell land, subject to the life estate of his parents, was in the defendant Jesse, and he was a minor about 15 years of age. There is no evidence that, since becoming of age, he has ever ratified and confirmed the deed. On the contrary, in his answer, he denies its execution, which is a repudiation of it. The plaintiff seeks to avoid this by averring that the defendant, though a minor, in executing the deed was but giving effect to a power of appointment and disposition reserved by his father, and was carrying out the trust impressed upon his title in 1899, and that a minor may execute a valid deed in pursuance of a trust.

As we have held that the legal title made to the defendant Jesse by the deed of 23 January, 1899, was not impressed with any trust, and that R. T. Wilson had no power of disposition over the fee after the execution of that deed, this contention of the plaintiff cannot be successfully maintained.

3. It is further avdrred that, prior to the execution of the deed to Jesse, the father, R. T. Wilson, executed his last will and testament, by which he devised to plaintiff the McDowell land and one-half of all his real and personal estate; and that soon after the death of the testator this will was destroyed by *289tie defendants in pursuance of a conspiracy entered into witi defendant Julia’s sister to defeat tie plaintiff of any interest in ier fatier’s estate. Plaintiff furtier avers tiat after tie execution of said deed in 1899 to Jesse, tie fatier, R. T. "Wilson, executed anotier paper-writing specifying in every particular iow iis estate siould be divided between iis two ciildren, and declaring in it tiat ie iad reposed tie legal title to iis lands in iis son for tie purpose' of bringing about an equitable division of iis estate between bim and iis sister. Plaintiff asks tiat tiese paper-writings be established by decree of tie court.

Tiese paper-writings are worthless as evidence of a declaration of a trust impressed by R. T. "Wilson upon tie legal title transmitted to iis son by tie deed of 23 January, 1899, for tie reason, as we have shown, tiat said Wilson did not own tie lands, and iad no power when ie joined in said deed witi iis wife to créate a trust binding upon iis wife.

If tie plaintiff desires to set up tie paper-writing as a will and devise, for tie purpose of claiming under it as a testamentary paper tie property real or personal devised to ier and not covered by tie deed of 23 January, 1899, then she siould proceed before tie clerk of tie Superior Court to offer tie same for probate.

This Court has held tiat a will which has been lost or destroyed before probate remains and continues in force as a will. “Tie only difference between tie probate of a will which can be produced and one which has been lost is as to tie nature and quantity of tie evidence required to prove it. Tie jurisdiction to prove tie will is not changed by its loss.” McCormick v. Jernigan, 110 N. C., 406. Tie form for probate of lost wills, as is said in tiat case, is in Smith’s Probate Law (3 Ed.), 13 Am. and Eng., 1077.

It is furtier said tiat tie statutes of limitation do not apply to tie simple taking of tie probate of a will. McCormick v. Jernigan, supra. So tie plaintiff may now, if so advised, offer tie alleged will for probate in tie proper jurisdiction.

4. Tie plaintiff furtier avers tiat R. T. Wilson died in pos*290session of over $10,000 in casb, which came into the possession of these two defendants, and that they have wrongfully appropriated the same as well as the notes, moneys, stock, crops, and provisions of said Wilson; and plaintiff avers that she is entitled to one-half thereof, and asks for an accounting-.

It is unnecessary to discuss the evidence in support of this allegation, as the plaintiff is clearly not entitled to that relief in this action, as it is now presented to us.

It appears, incidentally only, in one of the prayers for judgment that the defendant Julia is the administratrix of her deceased husband; but she has never been made a party to this action in her administrative capacity.

The primary purpose of this action is to declare a trust in behalf of plaintiff, and the accounting is asked as a necessary consequence resulting from the establishment of such trust.

As the plaintiff has failed to establish the trúst, her action fails.

In respect to this last demand, her remedy is to commence a proceeding against the administratrix and her brother, the other distributee and heir at law, for an accounting and settlement of the estate of her father. When that account is taken, evidence may be offered as to those sums of money and other property which the administratrix has received or ought to have received, and with which she is properly chargeable.

Upon a review of the entire record, we are of opinion that his Honor properly sustained the motion to nonsuit, and his judgment is

Affirmed.