Jordan v. . Sigmon

Stacy, C. J. We think there is error in the judgment to the prejudice of the next of kin of Fannie Sigmon, and that the ruling of his Honor is too favorable to the next of kin of M. D. Sigmon, appellants herein. *709 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 where 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 Brownfield's Estate, 8 Watts, 465, the testator gave his wife “one-third of my personal estate, during her life, after my just debts paid,” without any disposition over: Held, the widow was entitled to receive one-third of the personal estate and to dispose of it as she pleased, there being no limitation over of the part given to her. Again, in Diehl’s Appeal, 36 Pa., 120, a testator gave to his wife a tract of land during her lifetime, “together with all my bonds and notes, to have and hold the same. Also, all my personal estate, whatsoever will be left after iny decease, to have and to hold the same during her natural lifetime,” without making any disposition over: Held, that the bonds and notes became the absolute property of the testator’s widow. The rule announced in these cases is not one of law, but one of construction, to be used in aid of the discovery of the testator’s intention. Tyson’s Estate, 191 Pa., 218, 43 Atl., 131. The decisions in McKinley v. Scott, 49 N. C., 197, Black v. Ray, 18 N. C., 334, James v. Masters, 7 N. C., 110, and an Anonymous Case, 3 N. C., 161, while seemingly at variance with the Pennsylvania cases, just cited, are not in conflict with our present position, for in each of these cases the gift was for the life of the donee with no power of disposition. Nor are the cases of which Ernul v. Ernul, 191 N. C., 347, 132 S. E., 2, and Burwell v. Bank, 186 N. C., 117, 118 S. E., 881, may be taken as illustrative, in conflict, for in each case going to make up this line of decisions, there is a limitation over or the bequest is for the life of the donee “and no more.” Let the cause be remanded with suggestion that the plaintiff proceed in a manner not inconsistent with this opinion. The costs of appeal will be taxed against the appellants. Error and remanded-.