Heefner v. . Thornton

Winborne, J. This appeal raises for decision this question only: Under the will of W. W. Briggs, after payment of his debts, did his wife, Jennie M. Briggs, take his “entire estate of every nature and wherever' situated” absolutely and in fee simple, or did she take only a life estate therein? We are of opinion and hold that it was the intention of W. W. Briggs to give to his wife, Jennie M. Briggs, his personal property absolutely and his real estate in fee simple, and not merely a life estate therein. This is in accordance with statute, C. S., 4162, relating to devises of real estate, and in conformity with the uniform rule pertaining to such pro *705 visions for disposition by will of both personal and real property, often applied in decisions of this Court. Patrick v. Morehead, 85 N. C., 62; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Barbee v. Thompson, 194 N. C., 411, 139 S. E., 838; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Hambright v. Carroll, 204 N. C., 496, 168 S. E., 817; Barco v. Owens, 212 N. C., 30, 192 S. E., 862; Williams v. McPherson, ante, 565. An unrestricted devise of real property carries the fee. Roane v. Robinson, supra; Lineberger v. Phillips, supra; Hambright v. Carroll, supra. It is said in Carroll v. Herring, supra, that, “Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given; and it is also established by law that where an estate is given to a person generally or indefinitely with a power of disposition, or to him, his heirs and assigns forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy. The only exception to such rule is where the testator gives to the first taken an estate for life only, by certain and expressed terms, and annexed to it the power of disposition. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the naked gift of a power of disposition.” In Barco v. Owens, supra, the. Court said: “The general rule is that where real estate is devised in fee, or personally bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. . . . Conditions subsequent, in the absence of compelling language to the contrary, are usually construed against divestment. . . . The absolute devise is permitted to stand, while the subsequent clause is generally regarded as precatory only. . . . This is not at variance with the cardinal principle in the interpretation of wills, which is to discover and effectuate the intent of the testator, looking at the instrument from its four corners, but is in fact in aid of such discovery and effectuation.” Under the general rule as established by statute and in decisions of this Court, the words in the first paragraph in the will of W. W. Briggs “I bequeath and devise my entire estate of every nature and wherever situated to my wife, Jennie M. Briggs, with full and complete power to her to use, consume and dispose of same absolutely as she shall see fit,” standing alone, constitute an unrestricted devise of his real property and an unconditional bequest of his personal property. This provision gives his “entire estate of every nature and wherever situated” to his *706 wife with, “full and complete power” or disposition. The words are clear and unequivocal. No qualifying expression is annexed. The bequest carries absolutely, and the devise is in fee simple. The subsequent provision that “after the death of my wife, I bequeath and devise whatever shall remain unconsumed and undisposed of by my said wife,” is repugnant to the absolute gift to the wife, and is void, and will not defeat the devise and the bequest to her, nor limit either to a life estate. The judgment below is Affirmed.