BabNhill,
J.
The rules controlling the construction of a will are variously stated in numerous decisions of this Court. They all come to this: The objective of construction is to effectuate the intent of the testator as expressed in his will, for his intent as so expressed is his will.
Seawell v. Seawell,
233 N.C. 735, and cases cited.
A consideration of tbe language contained in tbe Clark will in tbe light of tbis rule leads us to tbe conclusion tbat tbe devise to tbe plaintiff does not vest ber with an absolute, unrestricted title to tbe property sbe received under tbe will.
It is true tbat a devise of real property shall be construed to be a devise in fee simple “unless sucb devise shall, in plain and express words, show, or it shall be plainly intended by tbe will, or some part thereof, tbat tbe testator intended to convey an estate of less dignity,” Gr.S. 31-38, and a devise generally or indefinitely, standing alone, constitutes a devise in fee simple.
Buckner v. Hawkins,
230 N.C. 99, 52 S.E. 2d 16, and cases cited. But here tbe devise was made “subject to tbe other provisions of my Will, both hereinbefore and hereinafter contained.” Thus the testator, by reference incorporated all the provisions of Item 5 of the codicil in, and made them a part of, Item 15 and subjected tbe devise to tbe limitations thereby imposed.
These provisions of tbe will clearly express the intention of tbe testator tbat plaintiff should take an estate in the residuary devise of less dignity than a fee simple.
The language in the codicil, “I have no desire to hamper or restrict ber in tbe ownership of tbe property . . . but I do desire in tbe event she dies without issue surviving, tbat tbe property which I have given to ber . . . shall pass to sucb of ber kindred as are of my blood, as hereinafter named,” is inseparably tied in with tbe succeeding positive disposition of tbe property in tbe event plaintiff shall die without issue surviving. “Tbe property passing under tbis provision shall be divided”; “shall each take one part”; “tbe property is to be divided”; “shall have sucb part” are not words of recommendation, wish or desire. They are imperative and dispositive in nature, effectively devising tbe property to others in tbe event plaintiff should die without issue surviving.
Brinn v. Brinn,
213 N.C. 282, 195 S.E. 793;
Elmore v. Austin,
232 N.C. 13, 59 S.E. 2d 205.
Tbis conclusion is supported by at least two other provisions in tbe codicil which clearly indicate tbe testator intended tbat plaintiff should take less than a fee absolute. He provides a method of ascertaining, at tbe death of plaintiff, tbat portion of ber then estate which represents tbe devise to ber. He then, later, says: “I have heretofore given my daughter large sums of money. Tbis Will is in no wise to affect her disposition of that or of any sum which sbe derived from any other source, it being my purpose and intent that this provision in my Last Will and Testament (Item 5 of the codicil) shall only apply to tbe property which sbe takes hereunder.” Why provide for tbe separation of ber estate at the time of ber death, or stipulate tbat tbe conditions contained in tbe will shall not apply to property he had given her during
bis lifetime, save to make clear bis intent that tbe conditions shall, as be ■unequivocally states, limit tbe estate devised?
Tbe power of disposition vested in plaintiff is not sufficient to bring this devise witbin tbe line of cases relied on by plaintiff. Tbe testator does not confine tbe limitation over to property “not used by ber” or property she does not consume as in
Barco v. Owens,
212 N.C. 30, 192 S.E. 862; or to property wbicb tbe plaintiff “dies possessed of,” as in
Carroll v. Herring,
180 N.C. 369, 104 S.E. 892; or “wbat is left” after a power to “use and spend as be cbooses, without any restriction,” as in
Roane v. Robinson,
189 N.C. 628, 127 S.E. 626; or wbat shall “remain unconsumed and undisposed of” pursuant to a power “to use, consume and dispose of tbe same absolutely as she shall see fit” as in
Heefner v. Thornton,
216 N.C. 702, 6 S.E. 2d 506; or “whatever property there is left” pursuant to power “to do as they like with this property” as in
Taylor v. Taylor,
228 N.C. 275, 45 S.E. 2d 368.
An unrestricted power of disposition in the first taker is implicit in tbe expressions “wbat remains,” “such portion as may remain undisposed of” and tbe like.
Here tbe limitation over is of tbe
corpus
of tbe estate devised to plaintiff. Nowhere in tbe will is she, either expressly or impliedly, vested with authority to consume, give away, or dispose of any part of tbe principal for ber own use or benefit.
Unquestionably she is granted tbe power to sell and convey any part of tbe property. However, this power must be construed in tbe light of tbe other provisions of tbe will, particularly of Item 5 of tbe codicil. It is inseparably connected with and attachéd to tbe discretionary authority to exchange, convert, invest, and reinvest any part of tbe property as changing conditions may require. As said in
Chewning v. Mason,
158 N.C. 578, 74 S.E. 357: “There is a marked distinction between property and power.” When she disposes of any part of tbe
corpus,
she is to receive a
quid pro quo
— its equivalent in cash or securities- — -and tbe property received in exchange becomes a part of tbe devised estate in lieu of that wbicb is conveyed.
Tbe court below entered judgment that plaintiff is seized of a defeasi-ble fee only. But tbe term “defeasible fee” denotes a base or qualified fee in realty. It is peculiar to tbe law of real property, and is not ordinarily used to denote an estate in personalty.
Tbe owner of a base or qualified fee has tbe right to tbe present possession, use, and control of tbe property.
Pendleton v. Williams,
175 N.C. 248, 95 S.E. 500;
Bunting v. Cobb, ante,
p. 132. He does not, however, have tbe power to sell and convey any part of tbe property and vest tbe purchaser with absolute title. This authority is vested in plaintiff. It
would seem, therefore, that the adjudication does not adequately define the nature and quality of plaintiff’s title.
It is true the court further adjudged that plaintiff holds title to the property “subject to all the limitations, restrictions, qualifications and •conditions” contained in the will. The plaintiff, however, prays the court to fix and declare the force and effect of these conditions and qualifications and define the exact nature of her title and her rights in and to both the personal property and the real estate bequeathed and devised to her. She is entitled to a specific answer to her prayer. This the court failed to give.
Is the language of the codicil sufficient to create a trust? If not, just what are the limitations upon plaintiff’s title? At common law there could be no limitation over of an estate in personal property without the intervention of a trustee.
Brown v. Pratt,
56 N.C. 202;
Speight v. Speight,
208 N.C. 132, 179 S.E. 461.
Free access — add to your briefcase to read the full text and ask questions with AI
BabNhill,
J.
The rules controlling the construction of a will are variously stated in numerous decisions of this Court. They all come to this: The objective of construction is to effectuate the intent of the testator as expressed in his will, for his intent as so expressed is his will.
Seawell v. Seawell,
233 N.C. 735, and cases cited.
A consideration of tbe language contained in tbe Clark will in tbe light of tbis rule leads us to tbe conclusion tbat tbe devise to tbe plaintiff does not vest ber with an absolute, unrestricted title to tbe property sbe received under tbe will.
It is true tbat a devise of real property shall be construed to be a devise in fee simple “unless sucb devise shall, in plain and express words, show, or it shall be plainly intended by tbe will, or some part thereof, tbat tbe testator intended to convey an estate of less dignity,” Gr.S. 31-38, and a devise generally or indefinitely, standing alone, constitutes a devise in fee simple.
Buckner v. Hawkins,
230 N.C. 99, 52 S.E. 2d 16, and cases cited. But here tbe devise was made “subject to tbe other provisions of my Will, both hereinbefore and hereinafter contained.” Thus the testator, by reference incorporated all the provisions of Item 5 of the codicil in, and made them a part of, Item 15 and subjected tbe devise to tbe limitations thereby imposed.
These provisions of tbe will clearly express the intention of tbe testator tbat plaintiff should take an estate in the residuary devise of less dignity than a fee simple.
The language in the codicil, “I have no desire to hamper or restrict ber in tbe ownership of tbe property . . . but I do desire in tbe event she dies without issue surviving, tbat tbe property which I have given to ber . . . shall pass to sucb of ber kindred as are of my blood, as hereinafter named,” is inseparably tied in with tbe succeeding positive disposition of tbe property in tbe event plaintiff shall die without issue surviving. “Tbe property passing under tbis provision shall be divided”; “shall each take one part”; “tbe property is to be divided”; “shall have sucb part” are not words of recommendation, wish or desire. They are imperative and dispositive in nature, effectively devising tbe property to others in tbe event plaintiff should die without issue surviving.
Brinn v. Brinn,
213 N.C. 282, 195 S.E. 793;
Elmore v. Austin,
232 N.C. 13, 59 S.E. 2d 205.
Tbis conclusion is supported by at least two other provisions in tbe codicil which clearly indicate tbe testator intended tbat plaintiff should take less than a fee absolute. He provides a method of ascertaining, at tbe death of plaintiff, tbat portion of ber then estate which represents tbe devise to ber. He then, later, says: “I have heretofore given my daughter large sums of money. Tbis Will is in no wise to affect her disposition of that or of any sum which sbe derived from any other source, it being my purpose and intent that this provision in my Last Will and Testament (Item 5 of the codicil) shall only apply to tbe property which sbe takes hereunder.” Why provide for tbe separation of ber estate at the time of ber death, or stipulate tbat tbe conditions contained in tbe will shall not apply to property he had given her during
bis lifetime, save to make clear bis intent that tbe conditions shall, as be ■unequivocally states, limit tbe estate devised?
Tbe power of disposition vested in plaintiff is not sufficient to bring this devise witbin tbe line of cases relied on by plaintiff. Tbe testator does not confine tbe limitation over to property “not used by ber” or property she does not consume as in
Barco v. Owens,
212 N.C. 30, 192 S.E. 862; or to property wbicb tbe plaintiff “dies possessed of,” as in
Carroll v. Herring,
180 N.C. 369, 104 S.E. 892; or “wbat is left” after a power to “use and spend as be cbooses, without any restriction,” as in
Roane v. Robinson,
189 N.C. 628, 127 S.E. 626; or wbat shall “remain unconsumed and undisposed of” pursuant to a power “to use, consume and dispose of tbe same absolutely as she shall see fit” as in
Heefner v. Thornton,
216 N.C. 702, 6 S.E. 2d 506; or “whatever property there is left” pursuant to power “to do as they like with this property” as in
Taylor v. Taylor,
228 N.C. 275, 45 S.E. 2d 368.
An unrestricted power of disposition in the first taker is implicit in tbe expressions “wbat remains,” “such portion as may remain undisposed of” and tbe like.
Here tbe limitation over is of tbe
corpus
of tbe estate devised to plaintiff. Nowhere in tbe will is she, either expressly or impliedly, vested with authority to consume, give away, or dispose of any part of tbe principal for ber own use or benefit.
Unquestionably she is granted tbe power to sell and convey any part of tbe property. However, this power must be construed in tbe light of tbe other provisions of tbe will, particularly of Item 5 of tbe codicil. It is inseparably connected with and attachéd to tbe discretionary authority to exchange, convert, invest, and reinvest any part of tbe property as changing conditions may require. As said in
Chewning v. Mason,
158 N.C. 578, 74 S.E. 357: “There is a marked distinction between property and power.” When she disposes of any part of tbe
corpus,
she is to receive a
quid pro quo
— its equivalent in cash or securities- — -and tbe property received in exchange becomes a part of tbe devised estate in lieu of that wbicb is conveyed.
Tbe court below entered judgment that plaintiff is seized of a defeasi-ble fee only. But tbe term “defeasible fee” denotes a base or qualified fee in realty. It is peculiar to tbe law of real property, and is not ordinarily used to denote an estate in personalty.
Tbe owner of a base or qualified fee has tbe right to tbe present possession, use, and control of tbe property.
Pendleton v. Williams,
175 N.C. 248, 95 S.E. 500;
Bunting v. Cobb, ante,
p. 132. He does not, however, have tbe power to sell and convey any part of tbe property and vest tbe purchaser with absolute title. This authority is vested in plaintiff. It
would seem, therefore, that the adjudication does not adequately define the nature and quality of plaintiff’s title.
It is true the court further adjudged that plaintiff holds title to the property “subject to all the limitations, restrictions, qualifications and •conditions” contained in the will. The plaintiff, however, prays the court to fix and declare the force and effect of these conditions and qualifications and define the exact nature of her title and her rights in and to both the personal property and the real estate bequeathed and devised to her. She is entitled to a specific answer to her prayer. This the court failed to give.
Is the language of the codicil sufficient to create a trust? If not, just what are the limitations upon plaintiff’s title? At common law there could be no limitation over of an estate in personal property without the intervention of a trustee.
Brown v. Pratt,
56 N.C. 202;
Speight v. Speight,
208 N.C. 132, 179 S.E. 461. Does that rule still prevail in this State?
Ernul v. Ernul,
191 N.C. 347, 132 S.E. 2;
Baker v. R. R.,
173 N.C. 365, 92 S.E. 170. If so, is it controlling here? These and perhaps other questions lie at the root of the problem plaintiff’s petition presents to the court. As yet they have not been adequately answered. For that reason the cause must be remanded to the end the court may spell out plaintiff’s rights and define the limitations attached to her title to the property involved.
Why doesn’t this Court perform this judicial function and be done with it ? Simply because this Court possesses no original jurisdiction in such matters. Its duty is to review the decisions of the Superior Courts of the State. The court below must exercise its original jurisdiction. If the parties are not then satisfied with the judgment entered they may bring the cause back for review.'
Counsel have filed comprehensive briefs. While we have not deemed it necessary at this time to cite all the cases to which our attention has been directed, they have, none the less, been of material assistance to the Court. However, counsel do not undertake to draw any distinction between the real and the personal property. Perhaps there is none. In any event, it is “a hole worth looking into.”
Error and remanded.
YaleNtiNe, J., took no part in the consideration or decision of this case.