Langston v. Barfield , 231 N.C. 594 ( 1950 )

58 S.E.2d 361 (1950) 231 N.C. 594

LANGSTON et al.
v.
BARFIELD.

No. 236.

Supreme Court of North Carolina.

March 22, 1950.

Hooks & Mitchiner, Smithfield, and William R. Britt, Smithfield, for plaintiffs, appellees.

Wellons, Martin & Wellons, Smithfield, for defendant, appellant.

STACY, Chief Justice.

The immediate question for decision is whether the defendant must account to the plaintiffs for a portion of the proceeds derived from the sale of the timber on one of the tracts of land. The trial court answered in the affirmative. We are inclined to a different view.

In the first place, Allie Barfield who was most assuredly the special object of the testator's bounty, is devised a life estate in the lands in question with certain conditions attached including the appurtenant "to sell any or all said lands" and use "the proceeds therefrom", i. e., the whole of the proceeds, for her common comfort and necessities of life. This is more than a naked power of sale attached to the life estate such as appeared in the case of Darden v. Matthews, 173 N.C. 186, 91 S.E. 835. More nearly in point, we think, is the case of Burcham v. Burcham, 219 N.C. 357, 13 S.E.2d 615. Here, as there, viewing the will in its entirety, it seems that the testator intended the remaindermen to take the "residue" of the lands or that which remained unsold at the death of the life tenant. Wachovia Bank & Trust Co. v. Heymann, 220 N.C. 526, 17 S.E.2d 665; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Hardee v. Rivers, 228 N.C. 66, 44 S.E.2d 476. The language of Item Four is, that if any of the lands should remain unsold at the death of the life tenant, "I give and devise the residue" to my nephews and nieces, naming the plaintiffs herein, and they are to share alike in the division of "such of my lands as may come to them under the terms of this my last will and testament". Clearly the testator intended that the life tenant should use all of the proceeds from any sale or sales for her own common comfort and necessities of life. The remaindermen are to share alike in the division of any lands that may come to them under the will, not in the proceeds of any sales made by or for the benefit of the first taker.

Secondly, the plaintiffs concede that the defendant has the right to sell the timber and convey full title thereto. Indeed, this would seem to follow necessarily from the language of the will. Not only is the first taker empowered to sell any or all of the lands in question, but she is also made the sole judge of the time and amount of such sales; and in case of her disability or inability to act, further provision is made whereby sales may be had for her benefit.

The case is controlled by the directions of the testator as expressed in his will. Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888; Smith v. Mears, supra; Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Hampton v. West, 212 N.C. 315, 193 S.E. 290.

Declaration and judgment will be entered in accordance with this opinion.

Error and remanded.