Creech v. . Grainger

Citations

• 10 S.E. 1032
• 106 N.C. 213

Syllabus

<p>Wills — Executors—Trusts in Will — Poivers of Administrator c. t. a. — Pleading—Demurrer.</p> <p>1. Under a will directing the executor therein named to continue testator’s business as long as the executor should think it profitable, and such of the profits as the executor might think actually necessary for the support of testator’s wife and children to be paid to the wife; also, to invest six thousand dollars, bequeathed by testator to his children, and apply the interest, annually, to the education of the children; also, to have entire control of testator’s business, to continue or discontinue in all, or any department of it, at any time he might find it not yielding areasonable profit, and out of the profits pay to testator’s wife, from time to time, such amounts as he might consider actually necessary for her support and the support of the children: Held, that upon the death of the executor and the appointment of an administrator d. b. n. o. t. a. the trust in respect to the investment of six thousand dollars, for the education of testator’s children, passed to the administrator; the other trusts were jpersonal to and discretionary with the executor, and became extinct at his death.</p> <p>2. An administrator, with the will annexed, becomes a trustee for any trusts declared in the will which could pass and be transferred to any one, as much as if he had been named executor.</p> <p>3. When a will directs the executor to invest a certain fund and apply the interest to the education of testator’s children, no part of such interest can be applied to the maintenance of the children.</p> <p>4. In such case, in an action by testator’s widow against the administrator d. b. n. c. t. a. for a certain amount paid by her for the children’s tuition, the complaint is demurrable if it fails to allege that the payment was made by authority either of the executor or the administrator.</p>