Toms v. . Brown

Clarkson, J. The questions necessary to be considered for the determination of this appeal: 1. Is the $8,000 item referred to in the petition a proper charge against the estate of Charles French Toms, Sr.? We think so under the language of the will. Item 3rd (h) of the last will and testament of Charles French Toms, Sr., is as follows: “That upon my death my wife, as my executrix, *298 shall be allowed to fully discharge, out of the income of my estate, or out of any money or funds arising from the sale of property belonging to the estate, or any other income derived by the estate, a certain deed of trust for $8,000 against the K. G. Justus house and lot, owned by us jointly on the Elat Rock Road, and when she shall have discharged such mortgage, or any mortgage given in lieu thereof, and paid the same, the property shall belong to her and she shall not be required, either in law or in equity, to account for the same, it being understood that this is an outright gift to her for the purpose of allowing her to have a home.” It will be noted that the property was held by Charles French Toms, Sr., and his wife, Meta Toms, as tenants by the entirety. Both are seized by the entirety per lout et non per my. To make it sure that the $8,000 secured by a deed in trust made jointly by himself and wife on property held by the entirety should be paid out of his estate, he so specifically wills and bequests “for the purpose of allowing her to have a home.” 2. Does the will and codicil attached to the petition confer power upon the executrix to sell real estate belonging to the estate? We think so. In Charles French Toms, Sr.’s will, made 10 April, 1933, are the following provisions: (1) His entire estate was left to his wife for life with remainder to his ■ children. (2) His wife as executrix was fully empowered to convey real estate. (3) He directed that the $8,000 should be paid from his estate. (4) He acknowledged certain indebtedness due his wife and directed that this be paid from his estate. In the codicil of 11 September, 1936, he expressly referred to his will of 10 April, 1933, and stated in the codicil that he has attached the two together. He says in his codicil that the indebtedness to his wife mentioned in his will has been paid without interest, and that he wishes her to have a building known as the Candy Kitchen to cover interest. The will is otherwise changed as follows: (1) He again leaves all his property to his wife with remainder to his grandchildren. He directs that she dispose of enough of said property to pay the vestry of St. James Episcopal Church of Hendersonville, North Carolina, the sum of one thousand ($1,000) dollars in cash, “which I desire them to use in the most useful manner that they may see fit in the advancement of the gospel.” A codicil does not import revocation but an addition, explanation, or alteration of a prior will. The courts are adverse to the revocation of a will by implication in a codicil. Baker v. Edge, 174 N. C., 100. A will and codicil are to be construed together so that the intention of the testator can be ascertained from both. Brown v. Brown, 195 N. C., 315 (320). *299 In tbe will Item 3(b) is as follows: “She shall have tbe power to sell and convey any part of tbe property and make good and sufficient deeds to purchasers therefor, who shall receive a good title to the same.” Item 3(g) : “That in the management of my estate her conclusions and opinions shall be conclusive and final and are not to be interfered with.” The power given in the will to the executrix to sell and convey is plenary. Wells v. Williams, 187 N. C., 134. The codicil does not revoke this, but the sale to pay the $1,000 to the church is a supplemental bequest and that the payment be in cash. The judgment of the court below we think is correct in all respects and for the reasons given is Affirmed.