Gomer v. Askew , 242 N.C. 547 ( 1955 )

89 S.E.2d 117 (1955) 242 N.C. 547

J. R. GOMER and wife, Mary Frances Gomer, Amos J. Gomer and wife, Eunice H. Gomer, R. G. Gomer and wife, Lillian J. Gomer, Ethel G. Ryder and husband, W. T. Ryder, Bernice G. Benton and husband, W. W. Benton, Elliott R. Horton and wife, Mary A. Horton, W. Hagar Horton and wife, Marguerite Horton, Waiter E. Horton and wife, Virginia J. Horton, R. B. Pierce and wife, Lydia H. Pierce, Minnie H. Hobbs and husband, James W. Hobbs, Dempsey Horton and wife, Katherine C. Horton, Elsie H. Barnhill and husband, S. C. Barnhill, Plaintiffs,
v.
M. P. ASKEW, Defendant.

No. 20.

Supreme Court of North Carolina.

September 21, 1955.

W. D. Boone, Winton, and J. Carlton Cherry, Ahoskie, for plaintiffs, appellants.

T. W. Costen, Gatesville, and Worth & Horner, Elizabeth City, for defendant, appellee.

BOBBITT, Justice.

The testator contemplated that his wife and children would have and take the benefits provided for them in his Will. He devised a part of his real property, the "Jackey Jones" tract, to his wife, Lizzie Gomer, during her natural life. He directed that, after her death, the "Jackey Jones" tract be sold and (the proceeds) divided equally between all of his children. Further, he directed that all his other property, real and personal, be sold and (the proceeds) divided equally between all of his children. He expressed the desire that Dr. Corbell, the executor, "come down & take an inventory of my chattel property & real estate." We think the testator's intent was that all his property, real and personal, other than the "Jackey Jones" tract, be sold forthwith and the proceeds divided equally between his seven children.

The beneficial interest of the seven children of the testator in the "Jackey Jones" tract were vested remainder interests, their right to immediate enjoyment being subject to no condition precedent save the termination of the life estate of the widow. Wachovia Bank & Trust Co. v. McEwen, 241 N.C. 166, 84 S.E.2d 642. The intent of the testator in so postponing his children's right to immediate enjoyment in respect of this tract was for the benefit of the life estate of the widow. Wachovia Bank & Trust Co. v. McEwen, supra.

When the widow dissented, she had "the same rights and estates in the real and personal property of her husband as if he had died intestate." Revisal of 1905, sec. 3081. Having made her election, she took nothing under the Will; but she was entitled to dower in the real property, Rev., sec. 3083 et seq., a child's part in the personal property, Rev., sec. 132, subd. 2, and allowances for a year's support for herself and her three children then under 15 years of age, Rev., sec. 3091 et seq. (So far as the record discloses, such allowances were not claimed or paid.) Her right of dower related to all real property of the decedent, without distinction between the "Jackey Jones" tract and other realty.

The widow's dissent terminated the life estate in the "Jackey Jones" tract devised to her by the testator. This accelerated the vesting in the testator's children of their (previously postponed) right to immediate enjoyment of their interests in this particular tract. Wachovia Bank & Trust Co. v. McEwen, supra, and cases cited.

If the testator is regarded as charged with knowledge of the statute law defining the widow's right to dissent, Thomsen v. Thomsen, 196 Okl. 539, 166 P.2d 417, 164 A.L.R. 1426, cited in American Trust Co. v. Johnson, 236 N.C. 594, 73 S.E.2d 468, he must be regarded also as charged with knowledge that, if she exercised such right to dissent, under the decisions of this "Court such dissent accelerated the rights of the remaindermen. Baptist Female University of North Carolina v. Borden, 132 N.C. 476, 44 S.E. 47, 1007.

The result of the widow's dissent was that the real property, subject to the widow's dower, and the entire personal estate, were to be sold and (the proceeds) divided between his seven children, subject to the payment of the debts, costs of administration, the Parker legacy, and the payment to the widow of her distributive share in the personalty.

By whom was this sale for division to be made? It seems plain that the testator intended that Dr. Corbell, the executor, take complete charge of all his property, "my chattel property & real estate." There is a single provision in which direction is given that all his property be sold and divided, without distinction between realty and personalty; and the implication is that the same person is to sell both realty and personalty. Saunders v. Saunders, 108 N.C. 327, 12 S.E. 909. It is noteworthy that four of testator's children were minors and thus unable to make sale except through a next friend or guardian. The interesting provision, "if my wife or any one else should charge my minor children board then my Executor shall become Guardian & shall board them elsewhere," suggests that the testator contemplated that the executor would have in his hands funds to be paid to or for the benefit of the minor children derived from the sale of his property.

True, the Will conferred no express power of sale on the executor. Is such power reasonably implied?

Where land is devised, to be sold for division among heirs or designated beneficiaries, nothing else appearing, the executor has no implied power to make the sale. Broadhurst v. Mewborn, 171 N.C. 400, 88 S.E. 628; Epley v. Epley, 111 N.C. 505, 16 S.E. 321; Gay v. Grant, 101 N.C. 206, 8 S.E. 99, 106. But where both realty and personalty are to be sold for division, a different rule applies. Since the statute, G. S. § 28-73, Rev., sec. 62, vests in the executor the power to sell the personalty, and the fund to be divided consists of the proceeds to be derived from the sale of both realty and personalty, nothing else appearing, the power of the executor to sell the realty involved in making the division is implied. Council v. Averett, 95 N.C. 131; Vaughan v. Farmer, 90 N.C. 607. The authority of these cases is fully recognized in the Broadhurst, Epley and Gay cases, as well as in the later case of Dulin v. Dulin, 197 N.C. 215, 148 S.E. 175.

These are rules of construction, to aid in the ascertainment of the testator's intention. Vaughan v. Farmer, supra. They must yield if the provisions of the will manifest a contrary intent. Roper Lumber Co. v. Swain, 161 N.C. 566, 77 S.E. 700.

The rule applied in Vaughan v. Farmer, supra, and cases to like effect, is applicable to the case at hand. Its application here seems in full accord with the testator's intent.

Consequently, we reach the conclusion that the executor had implied power to sell all of testator's real property (as well as all of his personal estate), subject to the widow's dower. This was done.

When the widow's dower was allotted it so happened that the "Jackey Jones" tract was allotted to her as her dower tract. We assume that the value of this tract was onethird of the value of all of testator's realty. Be that as it may, the fact that the "Jackey Jones" tract became the "dower tract" is a coincidence, without legal significance; and the law applicable is the same as if the widow's dower had been allotted in other realty.

Since we hold that the executor's deed was a good and sufficient conveyance of the land in controversy, subject to the widow's dower, we refrain from discussing the facts and law bearing upon other defenses interposed by defendant.

For the reasons stated, the judgment is affirmed.

Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.