69 S.E. 140 | N.C. | 1910
In August, 1902, William R. Williams died, resident in Nash County, seized of a tract of land containing about a hundred acres, of two town lots in the city of Rocky Mount, and of a small quantity of personal property. He left surviving him his widow, the defendant, Carrie Williams. He had no living children born to him and his wife, but when the feme plaintiff, Bettie Herring, whose maiden name was Bettie Melton, was only ten weeks old, he adopted her and took her into his home as his foster child. On 11 March, 1902, four months prior to his death the said William R. Williams had his neighbor, J. B. Stokes, to write his will for him and in that will he disposes of and devises his property as follows, to wit:
"I give and bequeath unto my beloved wife, Carrie Williams, all my property — real, personal and mixed — of what nature or kind soever, and wherever the same may be situate at the time of my death, to have and to hold during the term of her natural life; and at the death of my wife, the said Carrie Williams, the said property or as much thereof as may be in her possession at the time of her death, is to go to Bettie Melton, her heirs and assigns, forever."
Upon the death of the testator, the widow and life tenant Carrie Williams went into the possession of all the testator's land and personalty. On 23 February, 1903, she conveyed the real estate in fee to her brother-in-law-, the defendant Green, in exchange for land conveyed by him to her. Green, having thus gotten possession of the land, proceeded to cut from the 100-acre tract — being the only timbered land of which the testator died seized — all the standing timber growing thereon. It is admitted by the defendants that no part of the buildings and improvements, which were subsequently put on this tract of land by Green, were constructed from the timber which he cut and removed. It is further admitted that he cut the timber "solely for the purpose of sale and profit, *190 and not for the cultivation of the land or to increase the amount (233) of cleared land for the purposes of cultivation." He received for the standing timber, on 5 March, 1905, the net sum of $458.
The plaintiff demanded judgment for the waste committed and the forfeiture of the life estate. The contentions of the defendants were that Carrie Williams, the wife of the testator, under the provision of this will above quoted, had full right and power to dispose of any and all the real estate devised by her husband, and that the plaintiff, Bettie, was entitled to only such of his property as remained undisposed of at his wife's death, and, therefore, the plaintiff had no cause of action against them. His Honor held against this contention of the defendants and adjudged that "under the will of the testator, the defendant Carrie Williams became and was entitled to an estate for life, and that the plaintiff Bettie is the owner of a vested remainder in fee in all the lands of which the testator died seized, after the death of his wife and the falling in of the life estate"; and that the deeds of Mrs. Williams to Green conveyed only the life estate of Mrs. Williams. The defendant Green also contended that he could offset the waste charged by showing the value to the inheritance of the buildings erected by him on the land. His Honor held against the defendants on this contention. The jury having found that there was waste and assessed the damages at $458, his Honor rendered judgment declaring the estate of plaintiff, Mrs. Melton, under the will of Mr. Williams, to be in fee, for the amount of damages found by the jury, and further adjudging that if the money judgment was not paid by a day named, the estate of the defendants in the wasted land should be forfeit to the plaintiff. The defendants moved for judgment as of nonsuit, but this was overruled. The defendants appealed.
The primary purpose of the courts, when a will is presented for construction, is to ascertain the intention of the testator from the language used by him. In ascertaining such intention, the (234) entire will must be considered, and it is competent to consider the condition of the testator's family, how he was circumstanced, and his relationship to the objects of his testamentary disposition, so as nearly as possible to get his view-point at the time the will is executed. In the present case, the testator's family was composed of his wife, the defendant Carrie Williams, and his foster-daughter, the plaintiff Mrs. Bettie Herring. He had no children of his own, and he and his wife had raised the feme plaintiff from an infant ten weeks old. She was living with the testator and his wife at the time of his death. The testator's *191
estate consisted of a few articles of personal property of small value; a tract of land of about 100 acres, of which the arable land was sufficient for a one-horse farm; the buildings and the arable land were only in fair condition, and the remainder of the land was timber land; also a house and lot in the town of Rocky Mount and an unimproved lot in the same town. The tract of farm land was worth, at his death, about $1,250 or $1,500;, the evidence does not disclose the value of the house and lot or the unimproved lot, but the inference from the evidence is that they were not of large value, probably not exceeding $1,000 or $1,200. At the time of his death, the testator was employed as an overseer of another farm, and his own farm was rented, and his income from his work must have constituted the principal source of support for his wife and foster child. The will itself furnishes sufficient proof of the affection of the testator for his wife, and we will assume that he entertained feelings of affection for his foster daughter. It is clear, from the language of the will, that a life estate is vested in the wife, and a remainder in fee in the feme
plaintiff. It is equally clear that the life estate vested in the wife covered the testator's entire estate — "all my property, real, personal and mixed, of what nature or kind soever, and wheresoever the same shall be at the time of my death." But the remainder in fee to his foster daughter, the feme plaintiff, is limited to the "said property or as much thereof as may be in her (his wife's) possession at the time of her death." So the precise question is, do the words "as much thereof as may be in her possession at the time of her death" annex as appurtenant to the life estate a power of disposition in the life tenant? If the power of disposition is appurtenant to, or incident to, the life estate, then (235) under the decision of this Court in Parks v. Robinson,
Do the words of this will confer upon the life tenant a power of disposal of the property devised? Unless such effect is given to them, we must reject as meaningless the words, "or as such thereof as may be in her possession at the time of her death." The contention of the feme
plaintiff is that the remainder in fee, vested in her by the will, (236) extends to and embraces all the property of which the testator was seized and possessed at his death and in which he devised a life estate to his wife, except possibly such as ipso usu consumuntur, and so completely is the wife deprived of any power of disposition, the plaintiff can maintain an action to recover damages for voluntary waste. As we have said, to accept the contention of the plaintiff would be to strike from the will the words we have quoted. But we understand the rules of construction to require us to give effect to all the words used by the testator, unless they are in themselves meaningless, or so vaguely express a purpose that no definite intention can be inferred, or are plainly inconsistent with an otherwise clearly expressed intention, or are repugnant to some established rule of law. Redf. on Wills, 431-433. It will be noted that the testator does not use the word "dispose" or "sell" or any of their derivatives, but that it is not necessary to use these words or either of them to confer a power of disposal, has been held in numerous cases where the words used imply such power. Clark v. Middlesworth,
Error and reversed.
Cited: Griffin v. Lane,
(239)