Burton v. Irwin

181 S.E.2d 624 (1971)

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Nature of the Case

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Facts

Mallory, 86 years old, died without issue on November 10, 1967, leaving as her heirs at law and distributees two sisters, a brother, various nieces, and nephews and great-nieces and great-nephews. In her holographic will she made D the executor and trustee of her estate. She stated, ”My Brother knows my wishes and will carry them out, to the best of his ability.” D acquired the assets and was immediately sued by Ps. A sister, the personal representative of a sister who died after Mallory's death, five nieces and nephews, two great-nieces, and a great-nephew instituted this chancery suit against D. Ps claimed that the estate was devised and bequeathed to D to hold 'for the benefit of her heirs and next of kin'. D claimed he was entitled to the entire estate 'to the exclusion of her other heirs and next of kin.' The court held that no intention could be found in the language of the will that D take fee simple title to the estate. It held that Mallory attempted to constitute D 'an executor and trustee for the benefit of unknown persons and purposes' and that a 'naked trust was created or implied in favor of the heirs at law and distributees' of the testatrix. D appealed.