95 S.E. 53 | N.C. | 1918
Plaintiff Mary M. Makely, on 9 January 1918, sold to the defendant above named a tract of land, known as the "Donnell (102) Farm," with certain exceptions, for a valuable consideration, which defendant agreed to pay, and a deed sufficient in form to pass the title, and duly executed, was tendered by her to the defendant, which the latter refused to accept upon the ground that the title is defective, as under the will of her husband, Metrah Makely, the source of her title, she has no power to sell the land, and the controversy between the parties calls for a construction of the will, the relevant parts of which are as follows:
"I give, bequeath, and devise all my property of every kind to my beloved wife, Mary, to have complete control of during her life, to sell to pay any just debts of mine, or to sell to divide among her children, George, Metrah, Luella, Alice, and Agnes, to be divided equally between them. In the event my wife should be of the opinion that it would be to the interest of the grandchildren to give any share to the said grandchild and not to the said heirs or child, said heir or child is to have his or her support from said property as long as he or she lives, but no right to sell or in any way to dispose of the said property and leave their child destitute. I am afraid of our two sons, George and Metrah, but hope that they will come around all right. My wife is to take said property, what she needs for her support, and to sell and make a deed for the said property as if it were her own, and without being required to give a bond. I prefer that the most of the land be sold, where it can be sold at a fair price, the piece of the Donald farm, the Blount tract, if it can be retained for George or his children without injuring the sale of the balance, I prefer it to be retained and charge what it is worth to that share."
No part of the Blount tract mentioned in the will is involved.
Judge Bond held that plaintiff has the power, under the terms of the will, to sell the land, and that her deed would therefore convey a good title. Judgment was rendered accordingly, and defendant appealed. after stating the case: There is no question raised as to the proper distribution of the fund derived from a sale of the land, the only question being whether plaintiff has the power under the will to sell. The power is given twice; in the first part of the will, it is directed that she may sell for the purpose of paying debts or for a division among the children, and in a later clause a less restricted *112 power is bestowed, namely, "she is to take said property, what she needs for her support, and to sell and make a deed for the same (103) as if it were her own, and without being required to give a bond," and then a preference is expressed, "that the most of the land be sold, where it can be sold at a fair price, the Blount tract to be retained for George or his children, if this can be done without impairing the sale of the other tract, the value of the Blount tract to be charged to that share."
As we have stated, the Blount tract is not embraced by the description in the deed tendered by the plaintiff, and has not been sold, so far as appears. It would seem that the language of the will is quite board and comprehensive and confers a power very extensive in its scope. The testator evidently was very solicitous about the interests and welfare of his children, and was somewhat doubtful, as well as anxious, about the career of at least two of them. In his lifetime he could watch over them and act for the promotion of their best interest, but he wished to devolve this duty in respect to them upon his wife, in whom he had great confidence, after his death, so that she might take his place and exercise her judgment and supervising care in their behalf, having the same interest as he in their welfare. He therefore gave her large discretion, so that she could exercise a proper and adequate restraining influence and do what was best for them according to the existing circumstances, a not infrequent provision to be found in wills. She had the power in the distribution of his estate to prefer a grandchild to a child, in order to disinherit any one who might prove to be unworthy of his bounty or to do what seemed best to her as between the children and grandchildren. She was specially authorized to sell that she might pay his debts or divide the estate among the children. this provision would confer the power to sell without reference to the other parts of the will where a power is also conferred. The purpose in making the sale is not stated, nor was it material that it should be, as we are not concerned with that matter in the present phase of the case, as we do not understand it to be required that the purchaser should look to the application of the proceeds of the sale.
Cases bearing more or less upon the question in this case have been decided by this Court. The language of Judge Manly in Stroud v. Morrow,
The case of Troy v. Troy,
We have given the same construction as herein indicated to this will, at this term, in Makely v. Shore, where the Chief Justice says: "The *114 will not only gives the property to the wife for her life with `complete control' to sell and divide the same, but gives her the right to appoint the property to the grandchildren instead of to the children, subject only to giving the children a `support' from the property."
The learned judge decided correctly upon the facts stated in the case, and this affirms the judgment.
Affirmed.
Cited: Wells v. Williams,
(105)