Hardee v. . Rivers

Supreme Court of North Carolina

Hardee v. . Rivers

44 S.E.2d 476, 228 N.C. 66, 1947 N.C. LEXIS 546

CourtSupreme Court of North Carolina

DecidedOctober 15, 1947

StatusPublished

Cited by10 cases

This text of 44 S.E.2d 476 (Hardee v. . Rivers) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardee v. . Rivers, 44 S.E.2d 476, 228 N.C. 66, 1947 N.C. LEXIS 546 (N.C. 1947).

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Opinion

Barnhill, J.

A devise generally or indefinitely with power of disposition creates a fee. G. S., 31-38; Patrick v. Morehead, 85 N. C., 62; *68 Herring v. Williams, 158 N. C., 1, 73 S. E., 218; Darden v. Matthews, 173 N. C., 186, 91 S. E., 835; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892; Weaver v. Kirby, 186 N. C., 387, 119 S. E., 564; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626. But a devise for life with power of disposition creates a life estate only. Troy v. Troy, 60 N. C., 624; Chewning v. Mason, 158 N. C., 578, 74 S. E., 357; Tillelt v. Nixon, 180 N. C., 195, 104 S. E., 352; Alexander v. Alexander, 210 N. C., 281, 186 S. E., 319. The estate devised being specifically limited to the life of the devisee, the power of disposition does not enlarge the estate devised or convert it into a fee. Carroll v. lTerring, supra; Roane v. Robinson, supra; Helms v. Collins, 200 N. C., 89, 156 S. E., 152. One is property, the other is power. Neither limits or enlarges the other.

Even so, the donee of the power to convey may exercise that power under the terms and within the limitations contained in the will and when so exercised by deed sufficient in form and substance to convey the whole estate in the land therein described the grantee takes an indefeasible fee. Troy v. Troy, supra; Norfleet v. Hawkins, 93 N. C., 392; Griffin v. Commander, 163 N. C., 230, 79 S. E., 499; Darden v. Matthews, supra; Tillett v. Nixon, supra; Hood, Comr. of Banks, v. Theatres, Inc., 210 N. C., 346, 186 S. E., 345.

“The donee is the mere instrument by which the estate is passed from the donor (devisor) to the appointee, and when the appointment is made the appointee at once takes the estate from the donor as if it had been conveyed directly to him.” Norfleet v. Hawkins, supra. A deed executed by the donee of the power “will vest in the purchaser an estate in fee simple, and he will not be bound to see to the application of the purchase money.” Troy v. Troy, supra; White v. White, 189 N. C., 236, 126 S. E., 612. It follows that the deed tendered by plaintiff conveys an indefeasible fee and defendant under his contract is bound to accept the same and pay the agreed purchase price. Hence the judgment below is

Affirmed.

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Barnhill, J.

A devise generally or indefinitely with power of disposition creates a fee. G. S., 31-38; Patrick v. Morehead, 85 N. C., 62; *68 Herring v. Williams, 158 N. C., 1, 73 S. E., 218; Darden v. Matthews, 173 N. C., 186, 91 S. E., 835; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892; Weaver v. Kirby, 186 N. C., 387, 119 S. E., 564; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626. But a devise for life with power of disposition creates a life estate only. Troy v. Troy, 60 N. C., 624; Chewning v. Mason, 158 N. C., 578, 74 S. E., 357; Tillelt v. Nixon, 180 N. C., 195, 104 S. E., 352; Alexander v. Alexander, 210 N. C., 281, 186 S. E., 319. The estate devised being specifically limited to the life of the devisee, the power of disposition does not enlarge the estate devised or convert it into a fee. Carroll v. lTerring, supra; Roane v. Robinson, supra; Helms v. Collins, 200 N. C., 89, 156 S. E., 152. One is property, the other is power. Neither limits or enlarges the other.

Even so, the donee of the power to convey may exercise that power under the terms and within the limitations contained in the will and when so exercised by deed sufficient in form and substance to convey the whole estate in the land therein described the grantee takes an indefeasible fee. Troy v. Troy, supra; Norfleet v. Hawkins, 93 N. C., 392; Griffin v. Commander, 163 N. C., 230, 79 S. E., 499; Darden v. Matthews, supra; Tillett v. Nixon, supra; Hood, Comr. of Banks, v. Theatres, Inc., 210 N. C., 346, 186 S. E., 345.

“The donee is the mere instrument by which the estate is passed from the donor (devisor) to the appointee, and when the appointment is made the appointee at once takes the estate from the donor as if it had been conveyed directly to him.” Norfleet v. Hawkins, supra. A deed executed by the donee of the power “will vest in the purchaser an estate in fee simple, and he will not be bound to see to the application of the purchase money.” Troy v. Troy, supra; White v. White, 189 N. C., 236, 126 S. E., 612. It follows that the deed tendered by plaintiff conveys an indefeasible fee and defendant under his contract is bound to accept the same and pay the agreed purchase price. Hence the judgment below is

Affirmed.

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44 S.E.2d 476, 228 N.C. 66, 1947 N.C. LEXIS 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardee-v-rivers-nc-1947.

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