Doub v. Harper

65 S.E.2d 309 (1951) 234 N.C. 14

DOUB et al.
v.
HARPER et al.

No. 741.

Supreme Court of North Carolina.

June 7, 1951.

E. M. Whitman, Winston-Salem, for plaintiffs, appellants.

William S. Mitchell, Winston-Salem, for answering defendants, appellees.

ERVIN, Justice.

The appeal presents this single question for determination: Did Estelle G. Harper, Executrix of the Will of W. L. Harper, have testamentary authority on January 5, 1950, to sell the undivided one-third interest in the 190 acre tract to the plaintiff, Odell B. Doub?

These legal principles are pertinent to this inquiry:

1. A testator may confer on his executor by his will the power to sell his real property for any lawful purpose to which the testator wishes the proceeds of his real property to be applied. Powell v. Norfolk-Carolina Timber Corp., 193 N.C. 794, 138 S.E. 161; Trogden v. Williams, 144 N.C. 192, 56 S.E. 865, 10 L.R.A., N.S., 867; Johnson v. Johnson, 108 N.C. 619, 13 S.E. 183; Beam v. Jennings, 89 N.C. 451, Ferebee v. Procter, 19 N.C. 439.

2. A testamentary power to sell real property generally continues as long as there remains an unfulfilled object or purpose of the testator in aid of which it was intended that the power should or might be exercised. 33 C.J.S., Executors and Administrators, § 278; Foley v. Devine, 95 N.J.Eq. 473, 123 A. 248; Crozer v. Green, 298 Pa. 438, 148 A. 506.

3. Whether a testamentary power to sell real property extends beyond the period that the executor is to perform his ordinary legal duties in settling the personal estate depends on the intention of the testator as expressed in the will. 33 C.J.S., Executors and Administrators, § 278; Sharpe v. Ogle, 138 Md. 10, 113 A. 340.

The court below adjudged that Estelle G. Harper, Executrix of the Will of W. L. Harper, did not have testamentary authority to make the sale in controversy. Although the judgment does not ascribe any reason for this decision, it is evident that the trial court concluded that the testator conferred the power of sale on his executrix by the third item of his will merely to facilitate her performance of her ordinary legal duties in collecting his assets, paying his debts and settling his personal estate, and that consequently the power of sale terminated on May 5, 1938, when she filed a final account showing the completion of these ordinary legal tasks.

Candor compels the confession that the provision of the third item giving the executrix power to sell "any and all property" of the testator "during its administration or confirmation" undoubtedly lends color to this construction of the will. Nevertheless, such construction clearly conflicts with the evident intent and purpose of the testator when due heed is paid to everything within the "four corners of the instrument." Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. When this is done, it becomes apparent that the testator did not use the words "during its administration or confirmation" to indicate the time required by his executrix to discharge her ordinary legal duties of collecting his assets, paying his debts, and settling his personal estate, but that he employed them to define the period in which his will committed the management of his entire property to his widow, Estelle G. Harper, either in her fiduciary capacity as executrix or in her individual character as the primary object of his bounty.

A consideration of all the provisions of the will discloses the dominant purpose of the testator to devote the entire income from all his property to the support of his widow until she dies or remarries. To this end, he gives her all of his estate, both real and personal, for life or during widowhood. Moreover, he confers on his executrix the express power to sell, exchange, invest, and reinvest "any and all property" of his estate. Even the caviler can not contend that the power to exchange, invest, and reinvest the real property of the testator is related in any way to the ordinary duties of his executrix to collect his assets, pay his debts, and settle his personal estate. The grant of such power by the testator to his executrix manifests the deliberate intention on his part to have his estate actually yield an income to his widow during the time she is entitled to enjoy it.

These things being true, it necessarily follows that the testator intended that the power of his executrix to sell, exchange, invest, and reinvest his property should not terminate at the settlement of his personal estate, but should continue until the death or remarriage of his widow. Inasmuch as the object or purpose of the testator to have his estate yield income to his widow throughout her life or widowhood had not been fulfilled on January 5, 1950, his executrix had authority under his will to sell the property in question to the plaintiff, Odell B. Doub, and to invest the proceeds of the sale in other property, so that the widow might use such other property or the income arising thereon until her death or remarriage. It is noted here that the will explicitly empowers the executrix "to sell real estate * * * at private sale and to convey the same by such deeds or other instruments of conveyance as may be necessary to transfer legal title thereto."

In reaching the conclusion that the executrix had power to make a valid sale of the realty in question on January 5, 1950, we have not overlooked the fact that she filed a final account on May 5, 1938, showing that she had fully administered upon the personal estate, or the further fact that the Clerk of the Superior Court entered an order on that day approving such final account and purporting to discharge the executrix.

Manifestly, an executor does not abrogate a testamentary provision giving him power to sell the realty of his testator after completion of the administration of the personal estate by making a final settlement of the personal estate. Sharpe v. Ogle, supra. Moreover, neither the final account of an executor nor an order of the probate court approving it is operative as to matters not included or necessarily involved in the account. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562. Furthermore, an order of discharge made by the probate court on a final accounting by an executor can not do more in any event than discharge the executor from liability for the past. It does not destroy the executorship, or revoke an unexecuted power of sale conferred on the executor by the will. Starr v. Willoughby, 218 Ill. 485, 75 N.E. 1029, 2 L.R.A., N.S., 623. Hence, neither the final account nor the order of the Clerk deprived the executrix of the power conferred upon her by the will to sell the real estate in question.

There is no impropriety in the order made by the Clerk on January 4, 1950. In re Wachovia Bank & Trust Co., 210 N.C. 385, 186 S.E. 510.

For the reasons given, the judgment cancelling the deed of January 5, 1950, is set aside, and the cause is remanded to the Superior Court of Forsyth County with directions that it enter a decree on the facts found adjudging such deed to be valid and quieting the title of the plaintiff, Odell B. Doub, to the property in controversy as against the adverse claims of the answering defendants.

Error and remanded.