Dixon v. . Hooker

*676 CoNNOR, J. The law with respect to the title by which Mrs. Gertrude II. Coward took the personal property given and bequeathed to her by her husband, H. L. Coward, deceased, by Item 2 of his last will and testament, is stated in the opinion of this Court in Jordan v. Sigmon, 194 N. C., 707, 140 S. E., 620. Speaking of Item 2 of the last will and testament of M. D. Sigmon, involved in that case, which is almost identical in language with Item 2 of the last will and testament of H. L. Coward, involved in the instant ease, Stacy, G. J., says: “It will be observed that there is no residuary clause in the will, and no limitation over so far as the personal property is concerned. Under these conditions, a gift of personal property for life to the primary object of testator’s bounty, with power to use in any way that she may desire is generally construed to be an absolute gift of the property. Holt v. Holt, 114 N. C., 242, 18 S. E., 967; McMichael v. Hunt, 83 N. C., 344; Foust v. Ireland, 46 N. C., 184. Especially is this true when the property by reason of its amount and kind, may reasonably be expected to be consumed during the life of the donee, or within a short time after the death of the testator. In re Estate of Rogers, 245 Pa., 206, 91 Atl., 351, L. R. A., 1917A, 168. And this is not affected by the use of the words ‘for her support, comfort and enjoyment,’ as they are but terms consonant with full ownership of the property.” In Jones v. Fullbright, 197 N. C., 274, 148 S. E., 229, it is said: “The accepted doctrine is this: If an estate be given to a person generally or indefinitely, with a power of disposition, it carries the fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the expressed limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee. 4 Kent Com., 520, cited in Chewning v. Mason, 158 N. C., 578. This doctrine has been clearly stated in reference to both real and personal property in several of our decisions, among which are Troy v. Troy, 60 N. C., 624; Chewning v. Mason, 158 N. C., 578; Allen v. Smith, 183 N. C., 222; Roane v. Robinson, 189 N. C., 628. See, also, Roberts v. Saunders, 192 N. C., 191. In Long v. Waldraven, 113 N. C., 337, the following clause in the will of John B. Doub was contested: ‘It is my will that after the death of my wife my estate shall be equally divided between the heirs of my brothers and sisters, with the exception of one-third of my estate, which I leave at the disposal of my wife to be left as she may will.’ The Court held that the testator’s widow took a life estate in all the personalty with the power of disposing of one-third of it during her life, and that as she failed to make such disposition the personal property went to the heirs of the testator’s brothers and sisters.” *677 In Jones v. Fullbright, supra, it was held that where personal property was given and bequeathed by the husband in his last will and testament to the wife, for her natural life, with a limitation over, upon her death, the wife took the property only for her life, notwithstanding said property was given and bequeathed to her to be used and disposed of during her life as she might see lit. In that ease it is said: “But there was a direction that the proceeds of the personal property and of the cash referred to in paragraph 5 'not disposed of by her during her life,’ should be collected and sold for cash by a commissioner appointed by the court. We think it obvious that the testator thereby intended to give to his wife only a life estate in the personal property and in the cash described in paragraphs four and five of the will.” If the language used by H. L. Coward in Item 6 of his last will and testament, under a proper construction, is a limitation over of so much of the personal property given and bequeathed by him to his wife, Mrs. Gertrude H. Coward, for her life, as remained at her death, unused and unexpended by her during her life, for that said language is a direction by him that the sum of $1,000 should be paid to the Christian Church of Greenville, N. C., out of said property, and that the remainder should go to the children of his sister, Mrs. Gabrella Dixon, then under J ones v. FullbrigM, Mrs. Gertrude H. Coward took only a life estate in said property, and there was error in the opinion of the Court to the contrary. On the other hand, if the said language is not a limitation over, but is only an expression of the wish and desire which the testator had at the date of the execution by him of his last will and testament, and which he intended that his wife should observe or not, in her discretion, then under Jordan v. Sigmon, she was the owner of the property described in the complaint, absolutely, and not for her life only and the judgment of the Superior Court must be affirmed. It is clear from the language used by the testator in Item 6 of his last will and testament that he did not give and bequeath to the Christian Church of Greenville, N. C., the sum of $1,000, nor did he give and bequeath to the children of his sister the said property or any part thereof; he was content to express a wish and desire that his wife, Mrs. Gertrude H. Coward, should make these gifts. There was no limitation over of the personal property which he had given and bequeathed to his wife for her life by Item 2 of his will, for it is manifest that it was not the intention of the testator that the Christian Church of Greenville, N. C., or that the children of his sister should take under his will; at most they were to take from and under his wife, Gertrude H. Coward. It is also clear that the testator did not intend by the language used by him to impress upon the title of his wife to the personal property *678 given and bequeathed to her by Item 2 of bis will, any trust in favor of the Christian Church of Greenville or of the children of his sister, Gabrella Dixon. Whether or not she should give and bequeath to said church the sum of $1,000, or to said children the remainder of the personal property, given and devised to her by Item 2 of said will, and not used or expended by her during her life, was to be determined by her in the exercise of her discretion. As to the disposition of said personal property after the death of his wife, the testator was content to leave this matter to her discretion, realizing, doubtless, that the conditions under which he made his will might not exist after his death, and while his wife was living. This construction of the language in Item 6 of the last will and testament of H. L. Coward is in accord with authoritative decisions of this Court. Springs v. Springs, 182 N. C., 487, 109 S. E., 839; Hardy v. Hardy, 174 N. C., 505, 93 S. E., 976; Carter v. Strickland, 165 N. C., 69, 80 S. E., 961; St. James v. Bagley, 138 N. C., 384, 50 S. E., 841. We find no error in the opinion of the court in accordance with which the judgment was rendered. It is, therefore, Affirmed.