12 S.E. 909 | N.C. | 1891
The defendant denies most of the material allegations of the petition, and alleges that he is sole seized of the land. Both the plaintiffs and defendant claim to derive title under the will of Sion Saunders. The following is a copy of the material parts of the will:
"2. I lend unto my beloved wife, Elizabeth, during her natural life or widowhood, three hundred acres of land, including my (328) dwelling and outhouses, known as the `old tract'; also two negroes, slaves, Toney and Watey, and all her increase born after the date of this will — one horse, bridle and saddle, two cows and calves, two sows and pigs — her choice in the above-named stock; one buggy and harness. And I give, absolutely, unto my said wife, one feather bed (her choice) and all the bed-clothing that she brought here, and all she has raised since she came here, and one large chest, known as her own; one drawing table, two milly clocks, and all the fowls and poultry on hand at the time of my death. It is also my will that my wife have one year's provisions for herself and family out of the crop, stock and provisions on hand at the time of my death. *233
"3. I give and bequeath unto my youngest daughter, Loutory Susan Frances, all the above-named lent property, and all the increase thereof, both of negroes and stock, that shall be on hand at the death or marriage again of her mother.
. . . .
"It is also my will that all the balance of my estate, both real and personal, be sold and the money equally divided between my wife and all the rest of my heirs at law.
"And lastly, I do hereby constitute and appoint my trusty friend, A. H. Denton, my lawful executor, to all intents and purposes, to execute this my last will and testament, according to the true intent and meaning of the same, and every part and clause thereof, hereby revoking and declaring utterly void all other wills and testaments by me heretofore made."
The executor named in the will renounced his right as such, and E. H. Morgan and Ruffin H. Saunders were duly appointed administrators cumtestamento annexo. The devisees mentioned in the second and third clauses of the will died in the lifetime of the testator, the daughter dying unmarried and without issue.
Afterwards, on 18 March, 1864, after due advertisement, the (329) administrators sold the land embraced by the second clause of the will, and Primy Saunders purchased the same and took their deed therefor, and the material parts thereof necessary to be reported here are as follows: . . . "have bargained and sold and conveyed to the said Primy all the right we hold as administrators of said Sion Saunders' estate, one certain tract or parcel of land (that mentioned above) this being one-half of the house tract of land supposed to contain 150 acres, be the same more or less, all within the bounds; we, E. H. Morgan and Ruffin H. Saunders, administrators of the above named Sion Saunders, do promise to warrant and forever defend the right and title of the above named tract of land to Primy Saunders and her heirs to be free and clear from encumbrances as far as the virtue of our appointment gives. In testimony," etc.
The plaintiffs contend that such administrator had no power or authority under the said will or otherwise to sell the land, and that their alleged sale and deed in pursuance thereof are void. They further contend that the said deed, if it has validity at all, conveyed to the bargainee therein only a life estate. (They allege other objections to the deed that need not be mentioned here.) The defendant claims mediately under such sale and deed. It is admitted that the parties are those, or the representatives of those, entitled under the residuary clause of the will set forth above, and that Primy Saunders and Coly Saunders were sisters of the testator. The issue, "Are plaintiffs and defendant tenants in common of the land described in the petition?" was submitted to the jury, and they responded, *234
under instructions from the court, "Yes." Thereupon the court gave judgment directing a sale of the land for partition, and the defendant, having excepted, appealed to this Court.
The devisees mentioned in the second and third clauses (330) of the will before us died in the lifetime of the testator, and hence the devises therein to them lapsed, and the real estate, the subject thereof, in the absence of any intent to the contrary (none whatever appears) was included in the residuary devise, which provided that all the balance of the testator's estate, both real and personal, should be sold, and the money arising from such sale should be equally divided among his heirs at law. The statute (The Code, 2142) in force at, before and ever since the time this will was executed, expressly provides that the real estate, the subject of such lapsed devises, shall be included in the residuary devise if there be any, unless the contrary intention appear by the will. The purpose of this statute is too clear to admit of question. Knight v. Knight,
We are advertent to the case of Lea v. Brown,
Power to sell the real estate of the testator embraced by the (331) residuary devise is not in terms conferred upon the executor named in the will, but such power is certainly implied with sufficient clearness. By the law, in the absence of provision to the contrary, it is the duty of the executor to sell the personal estate. Here he is charged to sell it, and the direction to sell the same is coupled directly with the direction to sell the real estate. The implication is that the *235
same person (the executor) is to sell the estate, both real and personal property to be sold. The meaning is that the same person shall divide the fund arising from the whole property, and that person must sell both the real and personal property. Besides, the testator expressly declares in appointing the executor that he is such "to all intents and purposes, to execute this my last will and testament according to the true intent and meaning of the same, and every part and clause thereof." He could scarcely express his purpose to confer such power more clearly otherwise than by express words. Vaughan v. Farmer,
The executor appointed by the will renounced his right to qualify as such, but if he had so qualified he might have sold the land in controversy and conveyed such title thereto to the purchaser as the testator had. In his stead, administrators with the will annexed were appointed to execute its provisions, and they had power to sell the same land just as the executor might have done if he had qualified. The statute (Bat. Rev., ch. 46, sec. 40) in force at the time the will took effect, and at the time the sale in question was made and the deed was executed, so expressly provides. This statute has since the time referred to been somewhat modified by the subsequent statute (The Code, sec. 1493; Laws 1889, ch. 461; Council v. Averett, supra; Gray v. Grant, supra; Orrender v.Call, supra). Hence the administrators with the will annexed had power and authority to sell and convey the land in question to the purchaser by proper deed of conveyance. So far as appears by the (332) record, the sale was a valid one.
But the appellees contend that the deed executed by the administrators named, simply conveyed to the purchaser a life estate in the land, because sufficient words of inheritance were omitted. It must be admitted that the deed is informal. Clearly the draftsman of it was not skilled in such matters. The intent to convey the fee simple estate in the land is very obvious. The nature of the transaction, as the same appears in and by the deed, the comprehensive nature of the terms used, the nature of the words of conveyance and the use of the word heirs in the clause of warranty, all go to make such intent clear. Indeed, the word heirs, as used, has no meaning pertinent, or application, if the purpose was to convey but a life estate. Why shall the warranty extend to the heirs of the bargainee if he is to have but a life estate? The important words of the informal warranty clause are, "do promise and warrant and forever defend the right and title of the above-named tract of land to Primy Saunders and her heirs." The intent implied is that by the informal deed, as a whole, the land therein specified is conveyed in fee to the bargainee and her heirs. The clear intent appears, and there are words of *236
inheritance sufficient in the deed to effectuate such intent, though such words are informally applied. It is now well settled that in such cases the deed will be upheld as sufficient to effectuate the intent so appearing.Allen v. Bowen,
Error.
Cited: Ray v. Comrs.,