Daniel v. . Upley , 1 N.C. 726 ( 1793 )

I hold that the wife has a fee simple, joined to a power to alien to one of the sons. Of all conveyances, wills ought to be construed most strongly according to the intention of the maker. (1) Ex etymologia et vi terminitestament, quasi testatio mentis. Thereupon it has been ingeniously observed that in all legal words ending in ment, the mind and intention shall be closely attended to, as Parliament, Testament, Arbitrament, etc. (2) Bracton says that a will is donatio causa mortis et est define, justasententia voluntatis nostrae de eo quod quis post mortem suam de rebus suisfieri voluit, et de mortuis nil nini bonum. (3) Because then one is disabled; et suprema voluntas, quod mandat fierique jubet, parere necesseest. (4) Because then one is inops consilii, and the law supplies this and becomes his counsel. And Bracton says: Nihil tam conveniens naturaliaequitati quam voluntatem donatis rem suam ratum habere. But yet this rule is not so general as not to admit of some exceptions. Therefore, if the intention be repugnant to the rules of law it is void. 1 Rep., 85, Corbet'scase. A man devised to I. S., and his heirs. I. S. died during the life of the devisee; the devise is void. for the word heirs is a word of limitation and not of purchase; and although his intention was that the heir should have it, he shall not. (2) A will may be void for its uncertainty. 5 Rep., 64. (3) The intention shall be taken out of the words in the will, and not by external averment. Cheney's case, 5 Rep., In this case the word dispose is synonymous with the word ordain, as in 28 H., 8, 26; 1 R., 3, 27; H., 8. The feoffees to use shall have the dominion, and the cestui que use the disposition. 4 E., 2; F. West., 11; 17 E., 3, 7. Lease for life, with a grant to do for the best advantage, the lessee cannot commit waste. But in this case words of interest are added: I give to my wife to dispose. Hereby an interest passes, and if the will ended there, she should have an absolute fee to her own use. But the second clause corrects the first, so that she will have a fee, but with power to alien to one of the sons. For this is the clearest way of maintaining the will. It shall not be said that this is intended of the reversion. *(4) The words of the will import this. Here it cannot be a condition and there are no words of restraint. A condition is a clause inserted in a conveyance, by which the party is bound to do something under the penalty of losing or increasing an estate. Here it is not compulsory, for it is to be done at her pleasure. She has both an interest and an authority, as in the case of a devise to an executor to sell. But if the devise is that the executor shall sell, he has only an authority. But if it is devised that the executor shall levy a fine to I. S., he has also an interest, for none can levy a fine unless he has an interest. 16 H., 6. The vendee under such an authority of the executor is in under the testator, and shall avoid all grants, fines, and feoffments of the heir, and shall enter, notwithstanding a descent suffered by the heir. 9 H., 6, 25; 11 H., 6, 12; 21 E., 4, 24. Yet, admitting that it is a condition, it is well performed by the wife.

All the court agreed that it was.