78 S.E. 78 | N.C. | 1913
It is provided by statute that when there is a devise of real estate to any person, the same shall be construed to be in fee simple, unless the devise shall in plain and express words show, or it shall plainly appear by the will or some part thereof, that the testator intended to pass an estate of less dignity. Revisal, sec. 3138; Whitfield v. Garris,
In Troy v. Troy, 60 N.C. (Ann. Ed.), marg. p. 624, where it appeared that property was devised to testator's wife for life, with remainder to his son, coupled with an express power to sell all or any part of the property in the exercise of her judgment, the terms of the will showing a clear intention on the part of the testator to confer upon the wife a general power of disposition, this Court held that it was a powerappurtenant to the estate, and the estate created by its exercise took effect out of the life estate as well as out of the remainder, which was legally equivalent to saying that the exercise of the power by the widow defeated the remainder and passed the absolute fee to the purchaser from her. If such is the law with regard to an estate for life, the same result must *181 follow where there is no restriction as to quantity of the wife's estate, but she takes an estate of indefinite duration, whether it be the beneficial interest absolutely in fee or not, which we do not decide.
The case of Troy v. Troy was cited with approval in Parks v. Robinson,
In the first case cited the suit was for the specific performance of a contract to convey, and involved the ability of W. A. Wright and his wife, the vendors, to convey a good title to Westbrook, the (222) vendee — the same question we have here. But our case is stronger than those in favor of the defendant, for in some, if not all, of those cases a life estate only was devised to the donee of the power. The question in this case is fully considered in the recent case of Chewning v.Mason,
But looking at this will with the view of ascertaining the intention of the testator therefrom, it appears to us very clearly that his (223) wife was the chief object of his bounty. He evidently reposed the greatest trust and confidence in her, and believed that she would carry out his wishes with respect to their children and would be influenced by the same motives as he would have been, if living. He therefore gave her unlimited power and control of his estate, subject to the payment of his debts and funeral expenses. We cannot conceive of any more appropriate words to express the idea of an unrestricted power of disposition than those he used in his will. It was certainly intended that she should have a beneficial interest, and with reference to a power of appointment, where such an interest is given, ChiefJustice Pearson said, in Troy v. Troy, supra: "A power of this description is construed more favorably than a naked power given to a stranger, or a power appendant, because, as its exercise will be in derogation of the estate of the person to whom it is given, it is less apt to be resorted to injudiciously than one given to a stranger or one which does not affect the estate of the person to whom it is given."
Upon a consideration of the whole will, we conclude that Mrs. Brown, if she did not acquire an absolute estate in fee, was given a power to appoint absolutely in fee, and the exercise of the power will vest in the purchaser such an estate. Troy v. Troy, supra; Alexander v. Cunningham, supra. What will be the result if Mrs. Brown dies without having fully exercised the power as to all of the property, we need not say, as that question is not before us. Nor can we undertake to decide matters relating to the title of other persons who have bought from her, as they are not parties to this suit and will not be bound by our decision.
Before taking leave of the case, we may remark, with propriety, that it is not necessary for the executors to join in the deed. The will does not provide that they shall unite with Mrs. Brown in making any sale of the land or in exercising the power. The fourth clause evidently refers to the first, as it is the duty of the executors to pay the debts and *183
funeral expenses and, if necessary, to sell the property or so much thereof as may be required for that purpose. McDowell v.White,
Affirmed.