Hardee v. . Rivers

Barnhill, J. A devise generally or indefinitely with power of disposition creates a fee. G. S., 31-38; Patrick v. Morehead, 85 N. C., 62; *68 Herring v. Williams, 158 N. C., 1, 73 S. E., 218; Darden v. Matthews, 173 N. C., 186, 91 S. E., 835; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892; Weaver v. Kirby, 186 N. C., 387, 119 S. E., 564; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626. But a devise for life with power of disposition creates a life estate only. Troy v. Troy, 60 N. C., 624; Chewning v. Mason, 158 N. C., 578, 74 S. E., 357; Tillelt v. Nixon, 180 N. C., 195, 104 S. E., 352; Alexander v. Alexander, 210 N. C., 281, 186 S. E., 319. The estate devised being specifically limited to the life of the devisee, the power of disposition does not enlarge the estate devised or convert it into a fee. Carroll v. lTerring, supra; Roane v. Robinson, supra; Helms v. Collins, 200 N. C., 89, 156 S. E., 152. One is property, the other is power. Neither limits or enlarges the other. Even so, the donee of the power to convey may exercise that power under the terms and within the limitations contained in the will and when so exercised by deed sufficient in form and substance to convey the whole estate in the land therein described the grantee takes an indefeasible fee. Troy v. Troy, supra; Norfleet v. Hawkins, 93 N. C., 392; Griffin v. Commander, 163 N. C., 230, 79 S. E., 499; Darden v. Matthews, supra; Tillett v. Nixon, supra; Hood, Comr. of Banks, v. Theatres, Inc., 210 N. C., 346, 186 S. E., 345. “The donee is the mere instrument by which the estate is passed from the donor (devisor) to the appointee, and when the appointment is made the appointee at once takes the estate from the donor as if it had been conveyed directly to him.” Norfleet v. Hawkins, supra. A deed executed by the donee of the power “will vest in the purchaser an estate in fee simple, and he will not be bound to see to the application of the purchase money.” Troy v. Troy, supra; White v. White, 189 N. C., 236, 126 S. E., 612. It follows that the deed tendered by plaintiff conveys an indefeasible fee and defendant under his contract is bound to accept the same and pay the agreed purchase price. Hence the judgment below is Affirmed.