41 S.E. 289 | N.C. | 1902
We think there was error in the judgment of the court below. In construing wills, the object is to ascertain the intentions of the testator, and carry them into effect as far as it may lawfully be done. The evident intention of the testator was to provide a common home for her four younger children, two of whom are still infants, for a period limited to twenty-one years after the death of herself and her husband. While in general we do not approve of the needless tying up of land, we can not ignore entirely the jus disponendi inseparable from the right of property, nor can we say that the time herein limited is so long as to be contrary to public policy. There may be cases in which conditions may so change as to bring about hardships, which could never have been within the contemplation of the testator, and which might call for judicial intervention; but none such appear to us in the case at bar. The testatrix has been dead but a few years, and apparently nothing has occurred that would have changed her intention, unless it were the attempted mortgaging of the land by her husband, which she may have foreseen. She knew her own family, their wants and dispositions, and may have provided for the future better than may now appear. In any event, she was the owner of the property, and we must give effect to her lawful intent. Can there be any doubt as to her intention? She devised the property to the four children, Frank, Eugene, Florine and Sam, to be held in common, until twenty-one years after the death of their surviving parent, and then to vest in severalty in fee simple. She (242) evidently intended it as a common home, as she reserved the use of one room for her son Andrew J. Flanner. She provided that if the house should be burnt, the insurance money should be used to build another house on the same lot. She also provided a fund for protection of the home by directing the investment for that purpose of certain building and loan stock. What has become of that stock does not appear.
It seems that the petitioner R. A. Watts, Sr., executed a mortgage *170
upon the land in question after the death of his wife. So far as we can see, he had no interest whatever in the land, not even the right of curtesy, as that was destroyed by the will of the wife, the property having been acquired since 1868. Tiddy v. Graves,
We do not mean to say that the children, or any of them, are required to live in the house. Nor are we passing upon the effect of a joint deed executed by all the children after they become sui juris. Such a question is not before us in any shape. In the meantime, we see no reason why the house may not be rented out for the benefit of the children to whom it was devised.
Error.
Cited: S. v. Jones,
(243)