Smith Ex Rel. Smith v. Mears
10 S.E.2d 659
N.C.
1940
Check Treatment
Stacy, C. J.

Does the annexation, by codicil, of the power of sale or disposition, to the life estates given in the original will, convert them into fee simple estates? The trial court answered in the negative, and under the authorities to be cited, we agree.

In limine, it may be well to recall that the guiding star in the interpretation of wills, to which all rules must bend, unless contrary to some principle of law or public policy, is the intent of the testator, and this is to be ascertained from the language used by him, “taking it by its four corners,” and considering for the purpose the will and any codicil or codicils as constituting one instrument. Richardson v. Cheek, 212 N. C., 510, 193 S. E., 705; Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356; Jolley v. Humphries, 204 N. C., 672, 167 S. E., 417; Ellington v. Trust Co., 196 N. C., 755, 147 S. E., 286; Satterwaite v. Wilkinson, 173 N. C., 38, 91 S. E., 599.

A codicil is a supplement to a will, annexed for the purpose of expressing the testator’s after-thought or amended intention. Green v. Lane, 45 N. C., 113. It is to be construed with the will itself, and the two are to be considered as constituting a single instrument. Darden v. Matthews, 173 N. C., 186, 91 S. E., 835.

So looking at the will before us, we find that in the codicil the testator first ratifies and confirms his “last will and testament, dated Feb. 21st, 1912,” except as “changed hereby,” and then he proceeds to “modify” it in certain respects. It results, therefore, that the devises in question to the sons are to them “during their natural life,” with “full power to sell or dispose of any or all of the property in this will devised to them” in fee, and the devise to the daughter is to her “during her natural life,” with “full power to sell or dispose of her interest in all the property devised to her under this will” in fee.

It has been said in a number of cases that a devise to a person generally or indefinitely, with a power of disposition or' appointment, carries the fee. Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Hoskins *198 v. May, 213 N. C., 795, 197 S. E., 689; Fletcher v. Bray, 201 N. C., 763, 161 S. E., 383; Bass v. Bass, 78 N. C., 374. The rule is otherwise, however, when such power is annexed to a life estate. Patrick v. Morehead, 85 N. C., 65. In that ease the express limitation for life will control the operation of the power and prevent it from enlarging the estate into a fee. Darden v. Matthews, supra.

In Chewning v. Mason, 158 N. C., 578, 74 S. E., 357, the pertinent authorities are reviewed in a careful opinion by Walker, J., and the following conclusion reached: “We may, therefore, take the rule to be settled that where lands are devised to one generally, and to be at his disposal, this is a fee in the devisee; but where they are devised to one expressly for life, and afterwards to be at his disposal, only an estate for life passes to the devisee, with a bare' power to dispose of the fee.” The conclusion is supported by numerous decisions and by the great weight of authority throughout the country. Helms v. Collins, 200 N. C., 89, 150 S. E., 676; Cagle v. Hampton, 196 N. C., 470, 146 S. E., 88; White v. White, 189 N. C., 236, 126 S. E., 612; Darden v. Matthews, supra; Tillett v. Nixon, 180 N. C., 195, 104 S. E., 352; Fellowes v. Durfey, 163 N. C., 305, 79 S. E., 621; Griffin v. Commander, 163 N. C., 230, 79 S. E., 499; Herring v. Williams, 153 N. C., 231, 69 S. E., 140; Parks v. Robinson, 138 N. C., 269, 50 S. E., 649; Long v. Waldraven, 113 N. C., 337, 18 S. E., 251; Troy v. Troy, 60 N. C., 624; Annotation, 36 A. L. R., 1177.

Applying these principles to the provisions of the will before us, it follows that Ella Mears Webster took a life estate in the Home Place with power to sell or dispose of it in fee, and similarly that Clarence L. Mears and Jay J. Mears took life estates in the properties devised to them in items four, five and nine of the will, with power to sell or dispose of any or all of them in fee. The cases of Hoskins v. May, supra, and Fletcher v. Bray, supra, are distinguishable by reason of the different intents and purposes sought to be accomplished by the testators, and so expressed in their wills. It is this quest for the variant minds of testators, with no two situated exactly alike, and the necessity of interpreting language according to the circumstances of its use, that often results in close distinctions and renders the law of wills sui generis. Richardson v. Cheek, supra; McIver v. McKinney, 184 N. C., 393, 114 S. E., 399. Yet after saying this, we assiduously pursue the adjudicated cases for any gleam of light that may help us with the problem in hand. Worthy ideas expressed elsewhere and on other occasions, like nuggets of truth when or wherever found, know no barriers of time or place. It is only the foggy horizon that shuts them out. Goode v. Hearne, 180 N. C., 475. 105 S. E., 5.

*199 The question then occurs whether this power of sale or disposition may be exercised by will. The answer is one of testamentary intent.

Speaking directly to the question in Phifer v. Phifer, 41 N. C., 155, it was said: “A power given generally may, it is true, be executed either by deed or will, unless the particular mode of execution is prescribed. Sug. on Pow., 207; 1 Law Lib., 250. But the mode of execution, when the power is given by will, depends on the intention of the testator, and that is to be ascertained upon a fair construction of the will, like any other intention, when the terms are not express. Sug. on Pow., 97; 1 Law Lib., 117.”

It will be noted that the testator ratified and confirmed his will in the codicil, except as changed thereby, and to the power of sale or disposition he added the expression, “and receive the proceeds thereof as to them seems best or proper.” This added clause would seem to contemplate a sale or disposition by act inter vivos, and not by will. Cochran v. Groover, 156 Ga., 323, 118 S. E., 865; Moody v. Gallagher, 36 R. I., 405, 90 Atl., 663, L. R. A., 1916 C, 1040, and annotation. The trial court so concluded, and we agree. It follows, therefore, that Eobert L. Mears acquired no additional interest in his father’s estate under and by virtue of the wills of his brothers, Clarence L. Mears and Jay J. Mears.

It is suggested that the provision, “and receive the proceeds thereof,” is not annexed to the power granted to Mrs. Webster, and that as to her the power is general. Herring v. Williams, supra. The point is apparently not material on the present record as the court held that the deed executed by her on 14 October, 1936, conveyed a good and indefeasible title to her daughter, and this ruling is not challenged by the appeal.

The further holding that the grantee takes the property impressed with a trust in favor of the plaintiff for one-half its value, appears to be at variance with the power of sale or disposition granted in the codicil, Herring v. Williams, supra, as well as beyond the pleadings, and to this extent the judgment will be modified. Buncombe County v. Wood, 216 N. C., 224, 4 S. E. (2d), 505; Darden v. Matthews, supra; Troy v. Troy, supra.

It is stated in appellant’s brief that Martha Webster McLeod, under the will of her brother, Jay J. (Mears, acquired a one-fourth interest in all the property which he received from his father, and that this is erroneously stated in the judgment to be a one-sixteenth interest. The inadvertence is apparently conceded as the matter is not mentioned in the other briefs.

The cause will be remanded for modification of the judgment in accordance with this opinion.

Modified and affirmed.