Opinion
(December Term, 1864.)
1. A gift by will to A. for life, remainder to B. in fee, with a power to A. to sell all or so much of the property as in her judgment may be necessary, vests in A. an estate for her life, with a power of sale appurtenant to her life estate.
2. And the expression by the testator, in a subsequent part of his will, of a doubt whether the power of sale would not make A. the absolute owner of the whole estate, and a direction that in case such should be the construction in law, that C. should have the legal estate in fee in the property, in trust, etc., do not convey to C. any estate or interest in the property.
3. The will declares the expense of the education of his son to be a charge on all his property. A. holds the proceeds of sales, made under the power, in trust to pay debts, for her own support, and for the support and education of B.
THIS cause was removed from the Court of Equity of COLUMBUS to this Court for trial.
The bill states that in 1862 Robert E. Troy, the husband of the feme plaintiff and the father of the other plaintiff, died, leaving a last will and testament, which has been proved; of which the plaintiff Mary is the executrix. After stating, in substance, the contents of the will, and that the sale of some of the property is necessary to pay the debts of the testator, the bill charges that the defendant sets up a claim to the legal estate in the testator's property and denies the right of the plaintiff Mary to sell; and so obstructs the exercise of the power given to her. The prayer is for a declaration of the rights of the parties, and that the defendant be restrained from setting up any claim to any part of the property, or that he may be declared to be a trustee according to the claim he has made. (625)
The material parts of the will (which is made a part of the bill) are as follows:
"It is my will and desire that all my property and estate of every kind and description shall belong to my beloved wife Mary during the term of her natural life, and at her death to my son Alexander. Should it be necessary, however, in the judgment of my wife, that any of the property, real and personal, should be sold, then I authorize and empower my said wife to sell all, or such part thereof as she may think proper, either at public or private sale, for cash or otherwise, and to convey the purchaser an absolute title in fee simple. But if my said wife should marry, this power of disposing of my property shall cease and determine."
"Item. As I have some doubts whether the above disposition of my property would not be construed in law to vest in my wife the entire estate and title, notwithstanding it is expressly limited to her life, I therefore desire, in case the intervention of a trustee be necessary in law to carry into effect the disposition which I have made of my property, that the whole of my said property shall be held by my brother, Alexander Troy, for the purpose of carrying into effect my wish and desire above expressed: that is to say, in trust for my said wife during the term of her natural life, and at her death, in trust for my son, Alexander, or in trust for such person or persons as she may sell any of the property to while she remains a widow, and their heirs forever. But my said brother, Alexander J. Troy, is to be appointed trustee only in case that it should be necessary in law for carrying into effect said provisions."
"It is my will and desire that as soon as practicable after the probate of this my last will and testament, my executor hereinafter named shall procure a bill to be filed in the proper court of equity, for the purpose of having it declared whether or not it be necessary for the (626) intervention of said trustee; which bill shall be removed into the Supreme Court for final hearing."
"Item. In case my wife die or marry before my son arrives at the age of 21 years, or shall have completed his education, then I desire and request that my brother, Alexander J. Troy, shall see that my son, Alexander, shall be properly educated, the expense of which education I will and direct shall be a charge upon the whole of my property, whether my wife be living or not."
The answer admits the facts alleged in the bill. The cause was set for hearing on the bill and answer.
The will gives an estate to Mrs. Troy for life, with a remainder in fee to the infant son, subject to a power of sale by her in respect to all and every part of the property, in the event that, in her judgment, it should be necessary. This is a power appurtenant to her life estate; and the estate which may be created by its exercise will take effect out of the life estate given to her, as well as out of the remainder.
A power of this description is construed more favorably than a naked power given to a stranger, or a power appendant, because, as its exercise will be in derogation of the estate of the person to whom it is given, it is less apt to be resorted to injudiciously than one given to a stranger, or one which does not affect the estate of the person to whom it is given.
From the whole will it is clear the intention of the testator was to confide in the judgment of his wife in respect to the necessity of selling property either to pay his debts or for the support of herself, or for the support and education of their infant son; and for these purposes (as long as she remains unmarried) he gives her as full power to sell as he would have himself if living. There is no reason why this (627) intention should not be allowed to take effect. The apprehension of the testator that, possibly, the power of sale conferred on his wife might be construed "so as to vest in her the absolute title in fee simple" was groundless; for as an estate is expressly limited to her during the term of her natural life, and the remainder in fee is also disposed of, there is no room for construction. It follows that the provisional appointment of a trustee has no legal effect, and the defendant, Alex. J. Troy, has no estate or interest in the property; and these provisions have no other effect than a tendency to show the fullness of the power conferred, and that the object was to give his wife as ample power to sell, if in her judgment it was necessary for the purpose above stated, as if she was the absolute owner.
The exercise of the power will vest in the purchase an estate in fee simple, and he will not be bound to see to the application of the purchase money. That will constitute a fund to be held by Mrs. Troy, in trust for the payment of the debts of her husband, and in trust for the support of herself and the support and education of the infant child. And in such part as may not be required for these purposes she will take a life estate, with the remainder in fee to the child. Like all other trustees, she will be subject to the control of a court of equity in respect to the proper application and management of the trust fund.
There will be a decree declaring the rights of the parties. The costs will be paid by the plaintiff, Mary Troy, out of the assets of the estate.
Cited: Parks v. Robinson, 138 N.C. 271; Herring v. Williams, 153 N.C. 235; s. c., 158 N.C. 4, 9, 18; Mabry v. Brown, 162 N.C. 221, 223.
(628)