Bass v. . Bass , 78 N.C. 374 ( 1878 )

The question as to the construction of the will is this, Does the wife take an absolute estate, or an estate for her life only, with power to dispose of the reversion, which by reason of her failure to exercise the power vests in the heirs and distributees of the testator?

If the latter be the true interpretation, the defendant Emeliza will share with the others, and if not, she will be excluded. Our opinion is that the widow takes an absolute estate in the property, and that the fund must be distributed among her next of kin under (376) the statute entitled thereto. There is no express limitation put upon the gift, and the superadded words which undertake to confer upon the wife a power of disposition, "by her last will and testament or in any manner she may deem best," cannot be allowed to have the effect of imposing such limitations. The words are unnecessary, because the right to dispose of an estate is incident to the estate itself; but they serve more clearly to indicate the testator's intent, that she shall have the property free from all restraint, to possess, use, and dispose of in any manner she may choose. Indeed, the right to use and dispose of a thing at will constitutes the essential element of property, and the measure of its value.

The law is well settled that if an estate be given to a person generally, with a power of disposal, it is in fee, unless the testator gives to the first taker an estate for life only, and annexes thereto a power to dispose of the revision. 2 Jar. Wills, 171, n. 2; 4 Kent Com., 349; Jackson v.Robins, 16 Johns. (N. Y.,) 588; Rogers v. Hinton, 63 N.C. 78; Sugden on Powers, 96.

We have expressed our opinion of the meaning and effect of the will in order to facilitate the settlement of the estates in the plaintiff's possession. But we can render no judgment until all the parties in interest are properly before the Court. The record shows that ten of the defendants are infants, without guardian, general or testamentary, upon whom no process has been served as required by C. C. P., sec. 59, and that all the defendants came into court and accepted service of process on the return of the summons. This the infant defendants could not legally do. No answers were put in to the complaint, and it does not appear that any guardian ad litem was appointed or undertook to represent and protect the interest of the infant defendants in the action.

(377) The cause must therefore be remanded in order that the infant defendants may be regularly and properly made parties, and their interest protected, and other proceedings had therein according to law.

PER CURIAM. Remanded.

Cited: Patrick v. Morehead, 85 N.C. 66; Cates v. Pickett, 97 N.C. 27;Long v. Waldraven, 113 N.C. 339; Hughes v. Pritchard, 153 N.C. 143;Chewning v. Mason, 158 N.C. 583; Griffin v. Commander, 163 N.C. 232;Fellowes v. Durfey, ib., 311.