Sawyer v. . Dozier , 52 N.C. 7 ( 1859 )

Both parties claimed under the will of Margaret Dozier, which was as follows, viz.:

"1st. To my grandson, Edmund D. Sawyer, I lend the use of all my lands during his life, and at his death to be equally divided amongst his children lawfully begotten in wedlock; but in case he should die without such child or children, then and in that case to fall and descend to my daughter, Elizabeth Nash, to her and her heirs forever. All the balance of my estate, of every kind and description whatsoever, I lend to my grandson, Edmund D. Sawyer, during his lifetime, and at his death to his children lawfully begotten in wedlock, and in case he should die without such children or child, then the balance of said estate not made use of by said Edmund D. Sawyer, by his guardian, to be equally divided among all my heirs, etc. All my perishable estate of every sort, together with negro man, Isaac, and woman, Jinny, I wish my executor to sell to the best advantage, and purchase two or three negro boys for my grandson, Edmund D. Sawyer, and do whatever else he may think best, either in buying or selling, or hiring out, etc. I do hereby ordain Haywood S. Bell executor to this my last will and testament; moreover, I do hereby ordain, nominate, and appoint said Haywood S. Bell guardian to my grandson, Edmund D. Sawyer, with full and absolute power and authority to purchase, sell, or otherwise dispose of any property above lent or given, as to him may seem calculated to promote the interest of the same."

Haywood S. Bell declined both the offices of executor and guardian, and one William Sharmon was appointed guardian in his place. The latter was, by certain proceedings in the court of equity, removed from the guardianship, and Sawyer and Sharmon then came to a settlement; and it appearing that the guardian had expended some $417 more than the income of his ward's estate, the latter gave his note for the same, and executed to John Pool a deed of trust to secure the amount. The made to him by Pool, the trustee, Sharmon, the quondam guardian, (9) and Sawyer, the ward.

Edmund D. Sawyer is dead, and the lessors of the plaintiff are his legitimate children, and made demand before suit brought.

The foregoing facts were presented in a case agreed, and submitted for the judgment of the court.

His Honor being of opinion with plaintiff on the case agreed, gave judgment accordingly, from which the defendant appealed. By the will of Margaret Dozier, the land in controversy is given to Edmund D. Sawyer for life, remainder to his children in fee, and in the event of his death without a child him surviving, then over; and a power is given to Haywood S. Bell to sell the land, if in his opinion a sale would promote the interest of said Sawyer.

The power is naked, not coupled with any estate in Bell, and as he has not exercised it, we are at a loss to conceive of any ground to support the idea that the fact of conferring this power on him, to be exercised in his discretion for the benefit of the tenant for life, has the legal effect of enlarging the estate of the latter so as to give him or Sharmon, who for a time acted as his guardian, a right to convey the land in fee simple. Nor are we able to see how the fact that Bell is appointed by the will of Mrs. Dozier the guardian of her grandson, the said Edmund D. Sawyer, has any bearing on the question.

Whether the testatrix attempted to appoint Bell guardian for her grandson because he was under age (how the fact was is not stated in the case agreed), or because she considered him to be of weak mind, is immaterial, for under no view of the subject could that give either the grandson or his quondam guardian, Sharmon, any right to convey more than a life estate. So the estate of the defendant determined upon the (10) death of Sawyer, and the title was in the lessors of the plaintiff, who are his children, and took the remainder under the will.

PER CURIAM. Affirmed.