Wachovia Bank & Trust Co. v. Heymann

Stacy, C. J. On tbe bearing, tbe question in difference was made to turn on wbetber Frank A. Mears acquired tbe right to sell and convey tbe property in fee simple and also tbe right to mortgage it under tbe following clause, as enlarged by tbe codicil, in tbe will of G-. Augustus Mears, late of Buncombe County, this State : “Sixth: I give and devise to my son, Frank A. Mears, tbat certain bouse and lot situate on tbe west side of South Main St. in tbe City of Asheville, N. C., now occupied as a garage, for and during bis natural life, and at bis death to tbe children of bis body absolutely in fee forever.” In a codicil, tbe testator ratified and confirmed bis will except as changed thereby, and among other things, provided: “I further modify my last will and testament in this respect. Tbat is, each of my said sons may or shall have full power to sell or dispose of any or all of tbe property in this will devised to them in fee and receive, tbe proceeds thereof as to them seems best or proper.” Plaintiff acquired title under foreclosure of deed of trust' given by Frank A. Mears and wife to Haywood Parker, Trustee, to secure an indebtedness of $12,000 due to a third party. It was held in Smith v. Mears, 218 N. C., 193, 10 S. E. (2d), 659, in construing this same codicil, tbat it bad tbe effect of annexing as appurtenant to tbe life estate, originally created by tbe will, tbe power of sale or disposition in tbe life tenants. Herring v. Williams, 153 N. C., 231, 69 S. E., 140; Parks v. Robinson, 138 N. C., 269, 50 S. E., 649. This being so, tbe only additional question now presented is wbetber tbe power of sale or disposition given in tbe codicil includes tbe power to mortgage. Tbe trial court answered in tbe affirmative, and we approve. Ferrell v. Ins. Co., 211 N. C., 423, 190 S. E., 746. It will be observed tbat tbe testator ratified and confirmed bis will in tbe codicil, except as changed thereby, and to tbe power of sale or disposition be added tbe expression, “and receive tbe proceeds thereof as to them seems best or proper.” This appended clause would seem to contemplate a sale or disposition by act inter vivos of any kind in further- *528 anee of the benefit intended to be conferred on the devisees, including a conditional sale by mortgage or deed of trust. Hicks v. Ward, 107 N. C., 392, 12 S. E., 318. See Annotations, 92 A. L. R., 882; 21 R. C. L., 780. The result is an affirmance of the judgment below. Affirmed. Deven, J., took no part in the consideration and decision of this case.