Mabry v. . Brown , 162 N.C. 217 ( 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, 134 N.C. 27. It was argued by her counsel, from this provision, that defendant acquired a fee simple absolute by the terms of the will, and that the limitation over to the testator's children, being repugnant to the estate so devised, is void. This Court has stated that the purpose of that statutory provision is to establish a rule as between the heir and the devisee, in respect to the beneficial interest of the latter. Alexander v. Cunningham, 27 N.C. 430. But we can decide the case without giving any opinion upon this important question, for whether a fee simple absolute passed to the defendant or not, it is undoubtedly true that plaintiff acquired a good title by the exercise of the express and unlimited power of disposition and control. It seems to us that the very question now presented (220) to us for decision was before the Court in Roberts v. Lewis,153 U.S. 367. In that case the devise was to the testator's wife of all his estate, real and personal, with power to dispose of the same as to her shall seem most meet and proper, so long as she remained his widow, but upon the express condition that if she married again, all of the estate devised and bequeathed to her, or whatever remained, should go to his surviving children. The Court held, following and approving a decision of the State Court in a similar case (Little v. Giles,25 Neb. 321), "that the intention of the testator was to empower his widow to convey all of his real and personal estate, if she saw fit to do so, and, as she had exercised this right and power before her remarriage, the grantee under her deeds acquired all the title of the testator to such lands." The Court further said: "It is unnecessary to express a positive opinion upon the question whether, under this will, the widow took an estate in fee, for if she took a less estate with power to convey in fee, the result of the case, and the answers to the questions certified, must be the same as if she took an estate in fee herself." The two cases are sufficiently alike in their facts for the application of the same principle to both. If the widow in this case did not acquire a fee simple absolute by the devise, she at least got a fee simple, which was defeasible only by her failure to exercise the power, and having exercised the power by selling and conveying to the plaintiff, the limitation over was thereby defeated and of no effect, as to the lot conveyed. The subject is fully discussed, and with great clearness in 30 Am. and Eng. Enc. of Law (2 Ed.), pp. 736 to 739, and in the notes a vast array of cases will be found. It is there said that where the quantity of the estate is devised definitely and specifically, the rule that a devise coupled with an unlimited power of disposition and control carried an absolute interest in power of disposal passes. This power, it has been adjudged, is only coextensive with the estate which the devisee takes under the will. It is clear, however, that by appropriate expressions of intent, the power will not refer merely to the life interest of the first taker, but will (221) give him a life estate coupled with a power to dispose of the entire estate absolutely.

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 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,138 N.C. 269, and Herring v. Williams, 158 N.C. 1. In the latter case, this Court, by Justice Brown, said that where "there is a devise for life, with language which expressly gives the devisee a general power to dispose of both real and personal property, or where the devise is not limited to a life estate, but the property is devised absolutely, with a provision that what remains at the death of the devisees shall go to certain designated persons," the exercise of the power, express or implied, will defeat the remainder and vest the fee in the appointee under the power or purchaser, citing Troy v. Troy, supra. The cases of Wright v. Westbrook, 121 N.C. 155;Stroud v. Morrow, 52 N.C. 463; Little v. Bennett, 58 N.C. 156; Gifford v.Choate, 100 Mass. 343, and Barford v. Street, 16 Vesey, 134, are strong authorities for the position that the exercise by Mrs. Brown of the power conferred upon her by the will defeats the limitation over to the children and passes the fee to the purchaser.

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, 158 N.C. 578. See, also, Patrick v. Morehead, 85 N.C. 62. The devise in Barford v. Street, supra, was in trust for a married woman during her life, and after her decease to convey (and so forth) according to her appointment, with a limitation over, in case of her death in the lifetime of the testator, or in default of appointment by her. With reference to these facts the Master of the Rolls (Sir William Grant) said: "What do you contend to be the nature and extent of her interest? An estate for life, with an unqualified power of appointing the inheritance, comprehends everything. What induced me at first to doubt was the indication of an intention, in the codicil, that the estate should remain in the trustee for the life of the plaintiff, with powers to her inconsistent in a great degree with the supposition of her having, or being able to acquire, the absolute interest. But I do not think I can by inference from thence control the clear and express words by which the power is given to the devisee to dispose of this estate in her lifetime by any deed or deeds, writing or writings, or by her last will and testament. How can the court say that it is only by will that she can appoint? By her interest she can convey her life estate. By this unlimited power she can appoint the inheritance. The whole equitable fee is thus subject to her present disposition. The consequence is that the trustee must convey the legal fee according to the prayer of the bill." It will be observed that the case goes beyond what is necessary for us to decide, but it clearly and conclusively determines the question now raised in favor of the sufficiency of defendant's deed to pass the fee absolutely. The case of Smith v. Bell, 6 Peters (U.S.), 68, has no bearing upon the point, and, besides, it has been criticised [criticized] and doubted in more recent cases. Gifford v.Choate, supra; Parks v. Robinson, supra.

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 funeral expenses and, if necessary, to sell the property or so much thereof as may be required for that purpose. McDowell v.White, 68 N.C. 65. We have said that Mrs. Brown's power (224) of disposition under the will is subject to the payment of the debts of the testator, so that the purchasers from her will, of course, take subject to the encumbrance. If they would have a clear title, they must be sure that the debts and other liabilities are paid, for a man is required to be just before he is generous, and his gifts, by will or otherwise, are made subject to the payment of his debts, and in this case he has expressly directed that they must first be paid.

Affirmed.