Rountree v. . Dixon

Mérrimos, C. J. after stating the facts: We are of opinion that the Court below misinterpreted the material clause of the will of F. W. Dixon, the deceased testator, and erroneously gave judgment charging the estate, personal and real, with the debt of the plaintiffs. The testator does' not, by the clause of his will in question, devise to his wife an estafé for her life, or any estate in his real property, or give to her absolutely his personal properly. The language employed is not appropriate to create such estate, nor does a purpose to do so appear from the terms or obvious purpose of the will The testator directs that his wife “shallhold, use, occcupy and enjoy” all his property, as he did in his life-time, for a specified purpose — that of caring for his children in the same way that he had done while she should live. It is not said that she shall have or own the land, may sell it or any part of it, or dispose of it at all for any purpose, except that she may, in her discretion, “allot” to each of his children, as he or she shall come of age, his or her pro rata share. She *354 is to “ hold” the property — that is, have exclusive control, direction and superintendence of it; she is to “use” it — that is, cultivate and apply it for the purpose specified; she is to “occupy” it — that is, live on it with her children, servants and employees; she is to “enjoy” it — that is, have benefit of and devote it as her husband liad done in his life-time, in caring for herself and his children. Pie made and used and sold his crops — he did not sell the land — and devoted them to their support. The wife is expressly invested with power to “dispose of any surplus stock or farming implements she may find'as unnecessary in carrying on the farm and applying the proceeds of such sale to the -support of herself and family. The power to sell the surplus crops is implied by the right to “use” and “enjoy” the property. There is nothing going to show that the testator intended that his wife should sell the property, real or personal, that he left, except the “surplus stock or farming implements”; and it is singular that he did not invest her with general power to sell any part, or all, of the property, if he intended she should do so. He thought of, and had in his mind, the subject of power of sale, because he gave it to a limited extent and created a general power to “allot” the land to his children in the case specified. He knew what the power to sell meant. The clause of the will under consideration strongly suggests that the testator believed he left property abundantly sufficient, under the superintending care and control of his wife, in whose judgment and business capacity it is clear he had great confidence, to support and rear his family, and that he did not think of, or intend, a sale of any part of it. He intended, for the purpose of keeping his family together, that his property should remain under the control of his wife. A power to sell it would be inconsistent with and subversive of his general chief purpose in making a will, and *355 cannot be allowed by mere implication. If the wife may sell a part of it, in her discretion, she might sell the -whole of it and the family might, in a brief while, be homeless, the very thing the testator intended to provide against and prevent. And, for the like reason, the testator did not intend that his wife should create debts chargeable against the property; he expected that, hv good husbandry and management, the land would support his family as it had done in his life-time. It is asked, how are repairs on the farm and crops to be made, and possible pressing wants of the family to be supplied, if debts cannot be created chargeable on the property? The obvious answer is, the testator did not so intend and provide, and it is not the province of the Court to make the testator’s will, to supply a provision in it, or provide for a possible case he did not think of or contemplate. It can only decide what the will is — what is expressed therein. For the reasons stated, the wife and executrix in this case had no authority to create debts chargeable against the property of the testator. If merchants and others allow her to create debts, they have their remedy against her and her own property — not against that of the testator; he devoted itto his family in the way already indicated. The will contemplates that the crops produced on the land from year to year shall supply means to purchase such necessary things for the family and the farm as cannot be produced dn the land. Beyond such crops, and the proceeds of sales “ of any surplus stock or farming implements,” the wife, as such, or as executrix, has no power to charge the property of her testator, nor has the Court, for the like reason. The appellees relied, in part, on Cannon v. Robinson, 67 N. C., 53. That case is badly reported, and it does not appear from it what the clause of the will interpreted provided. On looking to the will in the papers on file, we find *356 that the testator expressly devised to his executors certain lands in trust for the use and benefit of his wife and others named, and dire ted that the executors have them cultivated “by employing free labor,” &c. The wife and others did not live on the land, nor was any fund provided for employing laborers, nor was any personal property given the executors, such as horses, mules and other things necessary to the cultivation of the lands. It was manifest that the testator intended that his ext eulots should make debts for the purposes specified. 'I hat case is essentially different from this, and so are all the cases cited by ihe appellees’ counsel. There is error. So much of the judgment appealed from as directs a sale of the personal and real property of the testator must be reversed, and in other respects it'will remain undisturbed Error.