Misenheimer v. . Sifford

Smith, C. J. (after stating the facts). "Very much of the argument for the appellant, in this Court, was directed to the construction of the will and the effect of the provision for the •support of the testator’s wife upon the devised estate. We do not deem it necessary to pursue this inquiry, since, if it were a -defeating condition, it is not apparent how this would enure to the benefit of the plaintiff, if there were any one to enforce it • while deeming it to fix a charge upon the land, would be more in consonance with the evident general purpose of the testator, in making provison for the support of his surviving wife. Wellons v. Jordan, 83 N. C., 371. The words used in Gray v. West, 93 N. C., 442: “ Arey Gray is to have her support out of land,” were held not to constitute a charge on the corpus of the laud, but a right to get her support “out of the rents of it, or the use or occupation thereof.” It affirmatively appears, that the devisee during his life, met the requirements of the will, in taking care of his mother, and the plaintiff herself received all the fruits and product of the land accruing thereafter, while in her charge and at her expense, so that, unless the substance of the land is to be used by conversion into money, to supply the inadequacy, the beneficiary has had the use of the land. Nor is it suggested that the defendant, Charlotte, who as heir of her father, the devisee, succeeded to the inheritance, ever refused or neglected to provide for her grand-mother, as he had before done. The plaintiff, actuated it would seem, by an apprehension that she would not be as well taken care of, and might I *595 ¡suffer from inattention, took her home, and was content to have the profits of the property applied to her maintainance, not ■demanding further compensation for her services and expenditures in that behalf. We see no ground whatever upon which the claim now asserted against the land, or against the defendants, ■can be sustained. There is no underlying agreement, expressed or implied, by which the plaintiff can, by doing what the owner •of the land is required to do, substitute herself in place of the beneficiary, and enforce her rights as against it. Moreover all the immediate rents and profits have been thus applied, and so far as appears, were sufficient and satisfactory compensation to the plaintiff. But- if inadequate, it was all that the land could yield, and is the full measure of the plaintiff’s claim against it. We therefore sustain the ruling of the Court and declare there is no error, and the judgment of non-suit must be affirmed. No error. Affirmed.