88 S.E. 628 | N.C. | 1916
On the hearing it was properly made to appear that plaintiff had contracted to convey to defendant, for $2,500 the undivided interest of Annie Whitaker Broadhurst in a house and lot in the city of Kinston, N.C. or her equitable claim to the proceeds of sale of said house and lot, if this be the nature of their interest, said plaintiff being the same Annie Whitaker Broadhurst referred to in the second item of the will of Martha J. Stanley, deceased, and under which the interest of said plaintiff arises, the item of said will being in terms as follows:
"Item 2. I want my mother to occupy the house on Queen (401) Street (furnished), where we live, during her life, provided that she would be satisfied; but if she prefers to move into a smaller house to live, I want the said Queen Street house rented out and the rent applied to her support as long as she lives. At her death I want it sold and the money divided as follows: One-third to be paid to my sister, Cynthia Hart Winfrey, and the other two-thirds to be equally divided between my two nieces, Myrtle Whitaker and her sister, Annie Whitaker Broadhurst, daughter of Dr. F. A. Whitaker."
In reference to the "house on Queen Street," the subject-matter of this item, the case agreed contains additional facts as follows:
"5 1/2. That at the time the said will was written and executed, and at the time of the death of the testatrix, she owned on Queen Street in Kinston a lot of land of not unusual residential size, there being in *462 Kinston some lots smaller, some about the same size, and some larger. The said lot was inclosed by lands of other parties with its frontage on Queen Street. The said house stood on said lot and the whole of said lot was used as one residential lot by testatrix." And it is stated, further, that plaintiff had prepared a deed, properly executed by both defendants, held in escrow by the National Bank of Kinston, purporting to convey to defendant plaintiff's one undivided third interest in the house and lot in question, and that defendant was ready and willing to pay the purchase price of said deed and on delivery would convey to defendant the title to said one-third of the house and lot or the right of plaintiff to the proceeds of such interest on sale of same, pursuant to the terms of the will.
The court entered judgment that feme plaintiff Annie Whitaker Broadhurst was the owner of the legal title to one-third interest in the house and the lot; that the same was held subject to a power of sale in the executrix of the will of Martha J. Stanly, and that the deed referred to, on delivery, would convey to defendant all the right, title, and interest of Annie Whitaker Broadhurst in said property, whether same be considered realty or personalty, etc.
Both plaintiffs and defendant excepted and appealed from the judgment. Plaintiffs excepted, assigning for error chiefly the ruling of the court that the executors had an imposed power to sell and convey the house and lot in question, and defendant excepted, assigning for error that the ruling on the term "house on Queen Street" included also the lot on which the same was situate.
(402) The devise of a "house," when referring, as in this case, to the dwelling-house of the owner, has been held the equivalent of the word messuage, and, in the absence of some term or clause restrictive of its meaning, it is said to convey the lot on which the dwelling is situate, together with the outbuildings customarily used by the owner as a part of his residence. Wise v. Wheeler,
In regard to the position that, under the terms of the will, there was an implied power in the executrix to make sale of the house and lot for the purpose of the division, we are of opinion that no such power was conferred. True, there are numerous cases where the power of sale by the executor has been sustained. In Lumber Co. v. Swain,
We are not inadvertent to the fact that the will, in the present (403) case, contains the expression, "appointing the executrix to execute this my will," an expression, however, very far from having the same significance as the explicit and extended terms conferring powers on the executors in Lumber Co. v. Swain and Saunders v. Saunders, to which we have adverted, and the extent and condition of the property, too, was very different. In this case the expression, in our opinion, should be considered only as a direction to execute the powers ordinarily incumbent on executors in the performance of their official duties. The executrix, then, being without power in the premises, the legal title to the house and lot, under our decisions, would, in the meantime, descend to the heirs of the testatrix (Clifton v. Owens,
On defendant's appeal, the judgment is affirmed.
On plaintiffs' appeal, the judgment is reversed.
Cited: Mewborn v. Moseley,
(404)