Doub v. Harper

EeviN, J. Tbe appeal presents tbis single question for determination: Did Estelle Gf. Harper, Executrix of tbe 'Will of W. L. Harper, have testamentary authority on 5 January, 1950, to sell tbe undivided one-tbird interest in tbe 190 acre tract to tbe plaintiff, Odell B. Doub ? These legal principals are pertinent to tbis inquiry: 1. A testator may confer on bis executor by bis will tbe power to sell bis real property for any lawful purpose to which tbe testator wishes tbe proceeds of bis real property to be applied. Powell v. Timber Corp., 193 N.C. 794, 138 S.E. 161; Trogden v. Williams, 144 N.C. 192, 56 S.E. 865, 10 L.R.A. (N.S.) 867; Johnson v. Johnson, 108 N.C. 619, 13 S.E. 183; Beam v. Jennings, 89 N.C. 451; Ferebee v. Procter, 19 N.C. 439. 2. A testamentary power to sell real property generally continues as long as there remains an unfulfilled object or purpose of tbe testator in aid of which it was intended that tbe power should or might be exercised. 33 C.J.S., Executors and Administrators, section 278; Foley v. Devine, 95 N. J. Eq. 473, 123 A. 248; Crozer v. Green, 298 Pa. 438, 148 A. 506. 3. Whether a testamentary power to sell real property extends beyond tbe period that tbe executor is to perform bis ordinary legal duties in settling tbe personal estate depends on tbe intenti'on of tbe testator as expressed in tbe will. 33 C.J.S., Executors and Administrators, section 278; Sharpe v. Ogle, 138 Md. 10, 113 A. 340. Tbe court below adjudged that Estelle G-. Harper, Executrix of tbe Will of W. L. Harper, did not have testamentary authority to make tbe sale in controversy. Although tbe judgment does not ascribe any reason for tbis decision, it is evident that tbe trial court concluded that tbe testator conferred tbe power of sale on bis executrix by tbe third item of bis will merely to facilitate her performance of her ordinary legal duties in collecting bis assets, paying bis debts and settling bis personal estate, and that consequently tbe power of sale terminated on 5 May, 1938, when she filed a final account showing tbe completion of these ordinary legal tasks. Candor compels tbe confession that tbe provision of tbe third item giving tbe executrix power to sell “any and all property” of tbe testator “during its administration or confirmation” undoubtedly lends color to tbis construction of tbe will. Nevertheless, such construction clearly conflicts with tbe evident intent and purpose of tbe testator when due heed is *19 paid to everything witbin tbe “four corners of tbe instrument.” Williams v. Rand, 223 N.C. 734, 28 S.E. 2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. When tbis is done, it becomes apparent tbat tbe testator did not use tbe words “during its administration or confirmation” to indicate tbe time required by bis executrix to discharge ber ordinary legal duties of collecting bis assets, paying bis debts, and settling bis personal estate, but tbat be employed tbem to define tbe period in wbicb bis will committed tbe management of bis entire property to bis widow, Estelle G. Harper, either in ber fiduciary capacity as executrix or in ber individual character as tbe primary object of bis bounty. A consideration of all tbe provisions of tbe will discloses tbe dominant purpose of tbe testator to devote tbe entire income from all bis property to tbe support of bis widow until she dies or remarries. To tbis end, be gives ber all of bis estate, both real and personal, for life or during widowhood. Moreover, be confers on bis executrix tbe express power to sell, exchange, invest, and reinvest “any and all property” of bis estate. Even tbe caviler cannot contend tbat tbe power to exchange, invest, and reinvest tbe real property of tbe testator is related in any way to tbe ordinary duties of bis executrix to collect bis assets, pay bis debts, and settle bis personal estate. Tbe grant of such power by tbe testator to bis executrix manifests tbe deliberate intention on bis part to have bis estate actually yield an income to bis widow during tbe time she is entitled to enjoy it. These things being true, it necessarily follows that the testator intended tbat tbe power of bis executrix to sell, exchange, invest, and reinvest bis property should not terminate at the settlement of bis personal estate, but should continue until tbe death or remarriage of bis widow. Inasmuch as the object or purpose of tbe testator to have bis estate yield income to bis widow throughout ber life or widowhood bad not been fulfilled on 5 January, 1950, bis executrix had authority under bis will to sell tbe property in question to the plaintiff, Odell B. Doub, and to invest the proceeds of tbe sale in other property, so tbat the widow might use such other property or the income arising thereon until ber death or remarriage. It is noted here that tbe will explicitly empowers tbe executrix “to sell real estate ... at private sale and to convey tbe same by such deeds or other instruments of conveyance as may be necessary to transfer legal title thereto.” In reaching tbe conclusion tbat tbe executrix bad power to make a valid sale of tbe realty in question on 5 January, 1950, we have not overlooked tbe fact tbat she filed a final account on 5 May, 1938, showing that she had fully administered upon tbe personal estate, or tbe further fact that the Clerk of the Superior Court entered an order on that day approving such final account and purporting to discharge the executrix. *20 Manifestly, an executor does not abrogate a testamentary provision giving Mm power to sell tbe realty of bis testator after completion of tbe administration of tbe personal estate by making a final settlement of tbe personal estate. Sharpe v. Ogle, supra. Moreover, neither tbe final account of an executor nor an order of tbe probate court approving it is operative as to matters not included or necessarily involved in tbe account. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562. Furthermore, an order of discharge made by the probate court on a final accounting by an executor cannot do more in any event than discharge the executor from liability for the past. It does not destroy the executorship, or revoke an unexecuted power of sale conferred on the executor by the will. Starr v. Willoughby, 218 Ill. 485, 75 N.E. 1029, 2 L.R.A. (N.S.) 623. Hence, neither the final account nor the order of the Clerk deprived tbe executrix of tbe power conferred upon ber by tbe will to sell the real estate in question. There is no impropriety in the order made by the Clerk on 4 January, 1950. In re Trust Co., 210 N.C. 385, 186 S.E. 510. For the reasons given, the judgment canceling tbe deed of 5 January, 1950, is set aside, and tbe cause is remanded to the Superior Court of Forsyth County with directions that it enter a decree on the facts found adjudging such deed to be valid and quieting the title of the plaintiff, Odell B. Doub, to the property in controversy as against tbe adverse claims of tbe answering defendants. Error and remanded.