Jenkins v. . Maxwell

| N.C. | Aug 5, 1860

Sidney Maxwell, by his last will and testament, duly executed and admitted to probate, devised the land embracing the locus in quo, and some personal property, to his grandson, Calvin J. Jenkins, in full estate. Afterwards he made a codicil in which he devised as follows: "And, inasmuch as my grandson, Calvin J. Jenkins, has left me and no longer attends to my domestic concerns, . . . I do, by this codicil, . . . direct that all my lands, wherever situated, . . . heretofore devised and bequeathed to my grandson, Calvin J. Jenkins, his heirs and assigns; also all my stock, etc., be sold by my executor to the highest bidder, and the proceeds arising from the sale of said lands to be equally divided, share and share alike, between my wife, Catharine, and children (mentioning six by name), instead as heretofore directed."

The testator had also, by the body of his will, given land in fee to one of his sons, Larkin Maxwell, and by the same codicil, which is partly above recited, he continues: "Also that tract of land heretofore devised to my son, Larkin Maxwell, his heirs and assigns, whereupon he now resides, to be sold as above mentioned, and the proceeds to be equally divided, share and share alike, among my wife and children, as above mentioned, instead as heretofore directed."

The plaintiff is one of the heirs at law of Sidney Maxwell, and the act complained of (cutting timber) was done on that part of the land devised in the body of the will to Calvin J. Jenkins, between the death of Sidney Maxwell and the sale of the premises by the executor — no person being actually living on the land at the time.

The defendant pleaded a license, and proved that Sidney-Maxwell (613) in his lifetime had given defendant leave to cut timber on this land.

By consent of parties a verdict was rendered for the plaintiff for a penny, subject to the opinion of the court on the whole case, as to the plaintiff's right to recover, with authority to set aside the verdict and enter a nonsuit if the court should be of opinion against the plaintiff.

Afterwards the court gave judgment for the plaintiff, and the defendant appealed. The opinion of his Honor is predicated on the idea that the will was revoked in toto, in respect to the land devised to Calvin Jenkins, by the codicil. If so, it followed, as the codicil gives to the executor a mere "naked power to sell," that the land descended to the heirs at law as intestate property, subject to be divested by the exercise of the power of sale, and, consequently, one of the heirs at law, there being no plea in abatement, could maintain trespass against a wrong-doer, as the defendant evidently was (for the license to cut timber being merely gratuitous, terminated at the death of Sidney Maxwell), for a trespass committed between the time of the death and the sale made by the executor. So the case turns on the question, Was the will revoked in toto in respect to the land devised to Calvin Jenkins? or, Was the effect of the codicil only to revoke the will sub modo, and leave the estate in Calvin Jenkins, subject to be divested by the exercise of the power of sale?

Upon this question the opinion of this Court differs from that of his Honor. The definition and effect of a codicil, and the learning on the subject, is so fully set out in an opinion filed at the last term in Raleigh, in Dalton v. Houston, 58 N.C. 401" court="N.C." date_filed="1860-06-05" href="https://app.midpage.ai/document/dalton-v--houston-3664692?utm_source=webapp" opinion_id="3664692">58 N.C. 401, that it is deemed unnecessary to enter upon the subject again. Suffice it that the principle (614) is settled, i. e., a codicil should be so construed as only to interfere with the dispositions made in the will to the extent necessary to give full effect to the codicil. In our case full effect is given to the codicil by allowing the land to pass to the devisee, subject to be divested by the exercise of the power of sale created by the codicil, and there is no occasion or necessity for supposing the intention of the testator was to revoke his will in toto, so far as this land was concerned, so as to let is descend to his heirs at law as undisposed of property.

The testator had changed his mind, and instead of giving the land and other property to Calvin Jenkins, absolutely, by the codicil he directs that it shall be sold by his executor and the proceeds divided among particular persons. But what is there to show that he intended to die intestate as to his property, and that it should devolve on his heirs at law and next of kin according to the statute of distributions, until the executor should sell, and not pass to the devisee and legatee, Calvin Jenkins, during that interim? He gives a reason for changing his mind, and for not making an absolute gift to Calvin Jenkins, as he had done by his will, all of which is comprised in the words, the property to be sold andthe proceeds to be divided as above mentioned, instead as heretoforedirected — that is, instead of being given to Calvin Jenkins absolutely; so, non sequitur, that it shall be intestate and undisposed of during the interim.

This conclusion is supported by the fact that in the same codicil he directs a tract of land devised to his son, Larkin Maxwell, "whereon he now resides," to be sold "as above mentioned" and the proceeds divided "as above mentioned," "instead of heretofore directed," and there is no motive or occasion or reason for interfering with Larkin's possession until the power of sale should be exercised whereby the title would be divested.

There is error, and on the case agreed the judgment must be reversed, and judgment given for the defendant.

PER CURIAM. Reversed.

(615)