Williard v. . Weavil

Seawell, J. It seems to be settled here that a life estate, with remainder over to designated persons, may be created in personalty, at least personalty of a more permanent nature, directly by will, without the intervention of a trustee. Smith v. Barham, 17 N. C., 420. Where the bequest is of property "quae ipso usu consumuntur,” it comes within the reason of the older law and the bequest conveys the absolute property in the chattels. Smith v. Barham, supra. But our decisions recognize that bequests of money do not come within the rule pertaining to personal property which perishes with use — could not be put to the ordinary use without being consumed; and such a bequest, therefore, does not invest the first taker with the absolute property in the subject of the bequest — in the absence of some expression in the will indicating a contrary intent. The rule is, of course, subject to the stronger rule that the intention of the testator controls. Haywood v. Wright, 152 N. C., 421, 67 S. E., 982; Burwell v. Bank, 186 N. C., 117, 118 S. E., 881. Under such a bequest, the holder for life is not permitted to invade the corpus of the estate given him, but is confined to the use of the interest or income therefrom. Jones v. Simmons, 42 N. C., 178; Burwell v. Bank, supra; Bryan v. Harper, 177 N. C., 308, 98 S. E., 822; In re Knowles, 148 N. C., 461, 62 S. E., 549; Holt v. Mfg. Co., 177 N. C., 170, 86 S. E., 1031. If the plaintiffs could establish a bequest of that kind under the terms of L. L. Smith’s will, they would, under the allegations of the complaint, have the right to pursue the property as trust funds, and recover the same from the estate of Yancey Swaim. But the will itself, taken with the allegations in the complaint, presents serious obstacles to that result. Smith required that all his personal property be sold at his death and that the same should go into his estate, but at this point, the will makes no disposition of it. The record is silent as to whether he had cash or moneys on hand at his death in. addition to other personalty and there is no presumption favoring either condition, except that it is unlikely he should use the term “proceeds” in designation thereof. Further on in the will (and we repeat for the purpose of clarity), it is provided: "Third, and the remainder of my Eeal Estate not included in allotment for my widow Shall be sold Either Public or .Private in the Judgment of my Executors and at the Death of my Widow my Executors of this my will Shall Sell first mentioned land (widows allottment) and the Proceeds of which Shall go to my Estate and shall be Equally Divided between my Eight children but my Daughter Mary *496 Jane Shall have her part only her life time and at her death her part shall go back to her Brothers and Sisters.” Opposite interpretations have been made of this language by the plaintiffs and the defendants respectively. The plaintiffs urge that the phrase “shall be equally divided” refers to the whole property left by the testator. They point out that the will denotes a general scheme of distribution of all the property, whereby it is to be reduced to cash to go into the estate of the testator and there to be equally distributed, with the restriction that Mary Jane’s share shall be for life only. They point out that the expression “shall be equally divided” comes at a point in the will just after the plan of reducing the property to cash has been expressed item by item; and they call to their aid the presumption against intestacy, which they argue will justify an expansion of the phrase denoting the bequest so as to include the entire property, or even a transposition of the language used, if necessary to that construction, and cite McIver v. McKinney, 184 N. C., 393, 114 S. E., 399, having to do with equitable conversion, and Holmes v. York, 203 N. C., 709, 712, 166 S. E., 889. Defendants point out that this scheme was not subsequently followed by the testator; that the use of the term “proceeds” and the distribution thereof occurs in close connection with the sale of the lands by the executors and must be confined to its grammatical sense — to the connection in which it is employed — and that it is intended to affect, and does affect only the proceeds of the sales of land by the executors. The lower court was evidently of the opinion that the apt use of the term “proceeds” as descriptive of the funds to be divided and the close juxtaposition of sale, proceeds and division in Item Three rather compel the adoption of the interpretation placed on the will by the defendants, and with this we are constrained to agree. We are not inadvertent to the presumption against intestacy, called to our attention by the plaintiffs ; but this rule, however strong, is but a rule of construction, which must yield to the true intent of the testator when that can be ascertained. Smith v. Barham, sufra. It does not authorize the Court to make a will or to add to a testamentary disposition something which, by reasonable inference, is not there, or to make intestacy impossible. Alexander v. Alexander, 41 N. C., 229, 231. It is the opinion of the Court that the adoption of the view urged by the plaintiffs would do too much violence to the language employed in the will. Our interpretation of the will, therefore, is that the restriction to a life estate of the share of Mary Jane Smith Swaim is confined to the bequest from the proceeds of the real estate directed to be sold by the executors, and not to any distribution of the estate generally. *497 Since the lands allotted to the widow were not sold by the executors until many years after tbe death of Mary Jane Swaim, and no part of tbe proceeds are alleged to have come into her hands; and since it appears that the testator, L. L. Smith, had sold and disposed of the other real estate prior to his death, and the purchase price had come into his hands not as proceeds from a sale by his executors and devoted to a special purpose under the will, but as his own money, subject to his complete control and disposition, free from any testamentary obligation; it follows that the plaintiffs are not entitled to pursue and recover the proceeds as trust funds from the estate of Yancey Swaim, if they could still be identified. Under the facts alleged, the plaintiffs have failed to connect their claim with any property from the bequest upon which they base their right of recovery, and the judgment sustaining the demurrer is Affirmed.