Powell v. . Woodcock

62 S.E. 1071, 149 N.C. 235, 1908 N.C. LEXIS 332

• Court: Supreme Court of North Carolina
• Decided: November 25, 1908
• Status: Published

Opinion

WalicbR, J.

There are two questions presented in this ease. 1. Does the word “estate,” used in the residuary clause of Mrs. Newton’s will, include her land ? 2. Is the power to sell the land given to George II. Newton by implication? The identical questions, we think, are fully discussed and affirmatively answered in Foil v. Newsome, 138 N. C., 115, which is substantially like this case in its facts. “The word 'estate,’ taken in its primary sense as used in a will, without anything in the context to limit it, is a word of very extensive meaning. It is nearly synonymous with the word 'pro-erty,’ where that word is not qualified by the addition of the word 'personal.’ Under the word 'estate,’ used in its primary sense, real property of every description will ordinarily pass, and the presumption is that the testator, in using the word, uses it in its.broad and inclusive signification, unless the context restricts its meaning to some particular species of property.” I Underhill on Wills, sec. 295; Foil v. Newsome, supra. The presumption is that the testatrix intended by her will to dispose of all of her property, and nyt that she intended to die intestate as to any part of it. Glasscock v. Gray, 148 N. C.; Harper v. Harper, at this term. In the case last cited, we held that the • word “estate” included the testator’s land and was not restricted to his personal property. The language used in the will, which was construed in that case, did not indicate as clearly that such was the intention of the testator as does the language of the will now under consideration. In the will of Mrs. Newton, the words are, “all the rest, residue and remainder of my estate, of whatsoever name and description and wheresoever situated, to my husband, George TI. Newton, in trust to receive, hold, invest and re-invest.” This language is very broad and comprehensive and, by itself, and certainly when considered with what follows in the will, evinces unmistakably the purpose of the testatrix to dispose of both real and personal property. Gardner on Wills, pp. 399-411.

The other question is also free from difficulty. No technical language need be used in the creation of a power. Any words definite enough to disclose its nature, the donee, or the person by whom it is to be exercised, and its objects, are sufficient; and so with a power of sale, it may be created by express Avords or by implication of Iuav. 18 Oyc., 320. It has, therefore, been held that “where a testator, in the disposition of his estate, imposes on his executor trusts to be executed or duties to be performed which require for their execution or performance an estate in his lands or a power of sale, the executor will take by implication such an estate or poAver as will enable him to execute the trusts or perforin the duties devolved upon him.” Lindley v. O'Reilly, 50 N. J., 636. Chief Justice Sharv stated the rule in these Avords: “If a testator having a right to dispose of his real estate, directs that should be done by his executor Avhich necessarily implies that the estate is first to be sold, a poAver is given by this implication to the executor to make such sale and execute the requisite deed of conveyance.” Going v. Emery, 16 Pick., 107. In Foil v. Newsome, supra, this Oourt said: “We are also of the opinion that the trustee has, by implication, the poAver to sell the land for the purpose of converting it into an income producing property. The usual rule adopted by the Courts is to find in language imposing upon an executor or trustee the duty of disposing of a mixed fund or property, an implied power to sell real estate to the end that he may discharge such duty. This construction reconciles the use of the words ‘invest/ £pay over interest or income/ ” citing Vaughn v. Farmer, 90 N. C., 607; Crawford v. Wearn, 115 N. C., 540; Council v. Averett, 95 N. C., 131. The cases of Foil v. Newsome, supra, and Cook v. Cook, 47 Atl. Nep. (N. J. Ch.), 732, are direct authorities, for such a, construction of the will as devolves upon the trustee the duty, and therefore the power, to sell the lot, the title to which is in controversy. It all results in this, that the deed from George S. Powell to Julian A. Woodcock will convey a good and perfect title to the latter, under the facts admitted in the case agreed. Carlton v. Coebler, 94 Texas, 93.

It is not necessary to decide the other question raised, as to the nature of the estate acquired by Neinon Newton under the will, that is, whether it is a vested or contingent one, nor need we consider whether the deed from Newton to Powell will estop the former. Our decision upon the other matter disposes of the case.

Affirmed.