Herring v. . Williams , 158 N.C. 1 ( 1911 )

ALLEN, J., concurring; WALKER and HOKE, JJ., dissenting. We have given this case a reexamination and have been forced to the conclusion that our former construction of the will of the testator Williams was erroneous. The writer holds himself as much responsible for the conclusion reached in the first opinion as if he had written it himself, instead of the learned and able judge whose name is prefixed to it. But further examination having convinced us that we were in error, it is our duty to say so and to hold that the original judgment of his Honor,Judge Guion, is correct.

The facts are fully and accurately stated in the first opinion. By reference to the report of the case it will be seen that the defendant Carrie Williams, widow of the testator, executed an ordinary deed in fee to her codefendant Williams, without any reference in the deed whatever to any power conferred by the will.

This is an action by the remainderman, Bettie Meton or Melton, the feme plaintiff, against Green for waste, damages, etc., for wrongfully cutting all the timber from the land for purposes of sale only.

It is said in the former opinion of the Court in this case that "The primary purpose of the courts, when a will is presented for construction, is to ascertain the intention of the testator from the language used by him." And in determining this question the courts hold, as pointed out by Justice Manning, that the rules of construction require that all the words used by the testator shall be given effect,"unless they are in themselves meaningless, or so vaguely expressed a purpose that (3) no definite intention can be inferred, or are plainly inconsistent with an otherwise clearly expressed intention, or are repugnant to some established rule of law." It is in our application of this latter principle to the will presented for construction that we now think we fell into error in the decision of this appeal. We gave to the words "or as much thereof as may be in her possession at the time of her death" an effect which, after further consideration and investigation of the authorities, we do not think can fairly be sustained. The will of the testator, William R. Williams, contained the following language: "I give, devise, and bequeath unto my beloved wife, Carrie Williams, all my property, real and personal and mixed, of what nature or kind soever, and wherever the same shall be at the time of my death, to have and to hold during her natural life, and at the death of my wife, the said Carrie Williams, the said property, or as much thereof as may be in her possession at the time of her death, is to go to Bettie Meton, her heirs and assigns forever."

In construing this will we held that the use of the words,"or so much thereof as may be in her possession at the time of her death," conferred upon Mrs. Williams a power of disposition and thereby enlarged her life estate into an estate in fee in the event she should exercise such power. Guided now by that cardinal rule for the construction of wills — the intention of the testator — we are of opinion that it was the intention of Mr. Williams to give his wife merely a life estate, with remainder to Bettie Meton in fee.

In order to give expression to every word used by the testator, we are not required to hold that the language quoted above refers to real property, but can restrict it to the personalty of the testator, and such restriction is sustained by both reason and authority, because it avoids inconsistency in the provisions of the will and maintains its integrity. Adopting this construction, we hold that the interest of Mrs. Williams, the wife of the testator, in the real estate is fixed by the specific language of the will,"to have and to hold during her natural life."

It is said in 30 A. E. Enc., 737-738, 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 (4) carried an absolute interest in the property has no application, and only a life estate coupled with a power of disposal passes. This power, it has been adjudged, is only coextensive with the estate which the devisee takes under the will." And the same text contains this statement: "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 give him a life estate coupled with a power to dispose of the entire estate absolutely." This latter statement is sustained byTroy v. Troy; 60 N.C. 624, in which property was devised to the wife for life, with remainder to testator's son, and the wife was by express terms given power to sell all or any part of the property in the exercise of her judgment, and other expressions in the will indicated a clear intention on the part of the testator to confer upon his wife a general power of disposition and to enlarge the life estate created by the will. Referring to this power, Chief Justice Pearson says that it is "a power appurtenant to the life estate, and the estate which may be created by its exercise will take effect out of the life estate as well as out of the remainder."

This case is not authority for the contention that the language in the will before us should be so construed as to give Mrs. Williams a general power of disposition and thereby empower her to convey the real property in fee. The intention to confer the power was clearly expressed in Troy v.Troy, and the question of the establishment of such power by implication was not presented. The decisions in other courts are to the effect that the intention to create the power of disposition must clearly appear from the language of the will, and will not be implied from language entirely consistent with the special reference to the life estate; and in that view we concur.

In considering a case in which the testator used the words "the remainder that is left," the Supreme Court of Missouri says: "It is needless to say that an intention clearly expressed in a will should not be defeated, except by some inflexible rule of law or public policy, unless a wholly inconsistent intention is manifest upon reading the entire (5) instrument. This is particularly true when the inconsistency is raised by implication only. The implication to have such effect should be very conclusive." In Wardner v. Baptist Memorial Board,233 Ill. 608, it is held that the use of the words "all that remains of the property" did not manifest an intention to create a power in the life tenant to dispose of the whole estate, the Court saying: "It is a general rule in all cases where by the terms of the will there has been an express limitation of an estate to the first taker for life and a limitation over, with general expressions apparently giving the tenant for life an unlimited power over the estate, but which do not in express terms do so, that the power of disposal is only coextensive with the estate which the devisees take under the will, and means such a disposal as the tenant for life could make, unless there are other words clearly showing that a larger power was intended." And in Giles v. Little, 104 U.S. 291, the testator's property, real and personal, was left to his wife with the provision that "if she should marry again, then it is my will that all the estates herein bequeathed, or whatever may remain, shall go to my surviving children, share and share alike." It was contended that there are words in this clause of the will which imply an absolute power of disposition and give to the children only what may remain undisposed of in the wife's hands at the termination of her estate."The contention," saysMr. Justice Wood, "rests upon the words `or whatever may remain,' and is that they imply that a part or all of the estate might be absolutely disposed of by the wife during her widowhood. If the purpose of the testator in the disposition of his property is what the other parts of his will clearly indicate, then these words cannot be construed to change that purpose. They can have operation without giving them that effect. He was seized of real estate and possessed of personal property. Both were included in the devise to the wife, and she was to have the enjoyment of both during her widowhood. The use of many species of personal property necessarily consumes it. The words under consideration many, therefore, fairly be construed to refer to the personalty, and the entire clause to give to his children a remainder in the real estate and whatever of the personalty was not consumed by the widow during widowhood." Smith v. Bell, 6 Peters, 68, (6) and Bramwell v. Cole, 136 Mo., 201, are to the same effect.

The case of Green v. Hewitt, 97 Ill. 113, strongly supports the views expressed in the foregoing cases. The following language was used by the testator in that case: "I give and bequeath to my beloved wife. . . the farm on which we now reside . . . also all my personal property of every description, so long as she remains my widow; at the expiration of that time the whole, or whatever remains, to descend to my daughter." It was held that the wife took a mere life estate in the entire gift. The Court says: "The misapprehension of the legal effect of the devise doubtless grows out of the use of the expression `whatever remains' by the testator, in limiting the remainder to his daughter. The use of that expression is of no vital significance, and cannot be permitted to override the clearly expressed intention that the widow should take a life estate only. . . . It had reference to the anticipated condition of the personal estate when it would, under the limitation, pass into his daughter's hands. And this is all the significance the expression has." See, also, Thompson v. Adams,205 Ill. 552, a more recent decision by the same Court.

In Russell v. Werntz, 88 Md. 210, the testator gave the residue of his property to his wife "to hold and dispose of as she may see fit, while she remains single, and at her death or marriage the remaining property is to be equally divided between my two daughters." The Court held that the widow took only a life estate in the real property, with remainder to the daughters, and that she had no power to dispose of the same in fee."But it is contended," says the Court,"that the words `the remaining property' should be regarded as indicating that the testator intended that the appellant should have the right to diminish the corpus of the estate. But we do not accept this view. The will, evidently, was not drawn by one accustomed to the preparation of such instruments. The words employed were not chosen with regard to their technical meaning. The property that passed under the second item comprehended both realty and personalty. All of it was liable to waste or decay; some portions of it doubtless would deteriorate (7) by its use and other articles were of such nature that their use was their consumption. In view of the general and particular intents of the will, it is not straining the construction of these words to regard them as indicating the intention of the testator that his widow should not be accountable for such loss or waste as might result from her personal enjoyment of the property." In Cox v. Shines, 125 Pa. St., 522, the testator gave to his wife the residue of his estate for life, and after his death all of said property, or "so much as may remain unexpended," to his children. The Court in disposing of the appeal said: "We are satisfied that her estate in the lands of the testator is for life, and that she had no power, express or implied, to dispose of any interest therein." A similar ruling was made in Taylor v. Bell, 158 Pa. St., 651.

The English cases, which are reviewed by the New Jersey Court of Chancery in Tooker v. Tooker, 64 At., 806, will be found to sustain our conclusion that the words used in the will before us are not sufficient to create power to dispose of the real property of the testator in fee.Constable v. Bull, 18 N.J. Eq., 302; Bibbens v. Potter, 10 Ch. Div., 733;In re Adams Trust, 11 Jur., N.S., 961.

The view that the language of this will, which it is contended creates a general power of disposition, refers to the personal property that may be in Mrs. Williams' possession at the time of her death, finds direct support in Williams v. Parker, 84 N.C. 90, in which the devise was in the following language: "I give and bequeath to my wife, Polly Williams, and my granddaughter, Sarah Jane Williams, all my land whereon I now live, and all my personal property of every order, during my wife, Polly's lifetime, and at my wife Polly's decease, if there should be any property or money left, then I devise and bequeath," etc. It was held by this Court that the property referred to as being left was personal property and did not include the real estate. This case is cited and approved in Brawley v. Collins, 88 N.C. 605, in which the following clause appeared in the will under consideration: "It is my will that all property, money, and effects willed by me to my wife, Mary, (8) that may be left at her decease shall be equally divided between my daughter Betsy, and grandsons, Stephen Brawley and Peter W. Brawley." The plaintiffs, the grandsons referred to in this clause, asserted title to the land in dispute as a limitation in remainder to them and their aunt in equal parts, after the death of the testator's wife, contending that the use of the word "property" included real and personal estate. This Court in an opinion by Chief Justice Smith rejected this contention and held that it was the intention of the testator to limit the scope of the expression "all property, money, and effects that may be left at her decease" to personal property. Chief Justice Smith says: "Manifestly, as land is not subject to a contingency, since it must, notmay, be left when life estate expires, he intended such goods as might be destroyed or consumed by the preceding owner, but in fact are not, but remain for the bequest in remainder to operate on." The Court was guided in that case by the intention of the testator, and at the same time all the language of the will was given effect, and we accomplish a similar result in the case before us by holding that the words "or as much thereof as may be in her possession" refer only to personal property, thereby preventing the repugnancy that arises from a construction by which the will is held to create a life estate with remainder over, and in the same sentence grants a power by which the life estate may be enlarged into a fee and the remainderman disappointed. As the Court says in Brawley v. Collins,supra, our duty is not to inquire what the words may comprehend, but what do they signify, and in what sense are they used by the testator, and "When this is satisfactorily ascertained from an inspection and comparison of the several provisions of the instrument, the construction must be adopted which carriers out the intent."

We have not deemed it necessary to review the authorities cited in our former opinion. Many of them will be found to fall within one of two classes, both of which are readily distinguishable from our case: first, cases in which there is a devise for life with language which expressly gives the devisee a general power to dispose of both real and personal property, and, second, cases in which the devise is not limited to a life estate, but the property is devised absolutely, with a provision (9) that what remains at the death of the devisee shall go to certain designated persons. Troy v. Troy, supra, and Parks v. Robinson,138 N.C. 269, fall within the first class.

There is a point made by the plaintiff, which we overlooked, which seems to us to be conclusive of her right to recover damages as against defendant Green. If we should concede that the language of the will should be so construed as to confer upon Mrs. Williams the power to dispose of the real property, such construction would not defeat the plaintiff's right to recover in this action against her grantee, Green. The deed to the defendant Green by Mrs. Williams does not purport to have been made in the exercise of the power of disposition; it contains no reference whatever to such power, and, upon a well-settled principle of law in this Court, the deed could not convey an estate in fee. The will, by language that is unequivocal, gives Mrs. Williams a life estate in her husband's property, real, personal, and mixed, and her deed, in the absence of any reference to the power of disposition, which she claims is conferred by the will, is held to convey only her life estate."When the donee of a power to sell has an estate of her own in the property affected by the power, and makes a conveyance of the property without reference to the power, the construction established by the decisions is, that she intends to convey only what she might rightfully convey without the power." Towles v. Fisher, 77 N.C. 440; Exum v. Baker, 118 N.C. 545. And "the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation; and if it be doubtful under all the circumstances, that doubt will prevent it from being deemed an execution of the power." Carraway v. Moseley,152 N.C. 353. We are of opinion, therefore, that it was properly held in the court below that the deed from Mrs. Williams to the defendant Green conveyed only her life estate.

In view of the fact that this opinion affirms the judgment of the Superior Court in favor of the plaintiff, we have examined the other exceptions in the record and find that they are without merit. It was not necessary to consider them when the case was originally before the Court, because the main question was decided in favor of the (10) defendant who brought the appeal to this Court.

Petition allowed.