Wells v. . Williams

Clarkson, J. "We do not think that any of the exceptions to the judgment by defendants, appellants, can be sustained. The contention of appellants' is that Laura A. Williams only devised to her husband, J. B. Williams, a life estate in the land and the defendants, appellants, have a remainder in fee simple, share and share alike. That the subsequent provision in the will authorizing the executor to sell and convey the lands could not deprive the appellants, the re-maindermen, of their estate in fee simple. That the necessity for making the sale under the will is with the court and not the executor. The language of the will, in regard to this matter, is as follows: “With the right to my said husband, if it shall become necessary, to call upon my executor hereinafter named to dispose of any portion of my real estate, and with full power to my said executor to make or execute deed or deeds to the purchaser or purchasers for any portion sold, and said executor to turn over to my said husband the proceeds thereof.” And further the will says: “But, upon his death, should there remain any unsold portion of my real estate, then it is my will and desire that the children of my brother, Lee Stepp, J. H. Stepp and Melvin Dean shall share and share alike in said property if any should remain at the death of my said husband.” The further desire of Laura A. Williams, expressed in her will, was that her husband, J. B. Williams, should not want for anything during his life and should use as much of said property as may be necessary to make him comfortable during his life. It is well settled that in the interpretation of wills the entire will is considered and not a part, to elucidate the intention of the testator. *139 Tbis intent, as appears from the entire will, is upheld unless in violation of law. Smith v. Creech, 186 N. C., 187. The executor had authority, under the clear language of the will, not only to sell and make title in fee simple but the further discretion to turn over the proceeds of the sale to J. B. Williams. This discretion must be exercised fairly and in good faith, in his best judgment and sound discretion. In Makely v. Land Co., 175 N. C., 101, it was held: “A devise of land to the wife, to have 'complete control’ for her life, to sell to pay debts of testator, who was her husband, and for division among their children, with power to give any share to testator’s grandchildren, subject to the support of their parents for life, 'and to sell and make deed for said property as if it were her own, and without being required to give bond,’ and expressing anxiety as to two of the testator’s children, with Tope that they will come around all right’: Held, the will' conferred the power upon the wife to sell the land in her discretion and make a valid deed, not requiring the purchaser to see to the application of the purchase money.” In Parks v. Robinson, 138 N. C., 269, it was held: “Where a testator died, leaving a widow and minor children and by his will gave to his wife 'during her natural life and at her disposal all the rest, residue and remainder of his real and personal estate’: Held, that the wife was given an estate for life with a power to dispose of the property in fee.” Chewning v. Mason, 158 N. C., 578; Troy v. Troy, 60 N. C., 624; Stroud v. Morrow, 52 N. C., 463; Marrow v. Marrow, 45 N. C., 148. In the case of Maclin v. Smith, 37 N. C., 376, the 19th clause of the will is as follows: “It is my will that my children shall be sent to such school as will enable them to acquire the best education and fit then! to move in an elevated sphere, affording to each the same opportunities as near as may be.” Gaston, J., said: “Her father, from whose bounty all her property is derived, has ordered, by declaring it to be his will, that she shall receive the best education that could be given her, so as to fit her to move in an elevated sphere, and he has not qualified this command by any limitation, that the cost shall not exceed her income. He could do with his own as he pleased, and, having willed that this object shall be effected, he has willed that all the means, which he has put into the hands of him, in whom he confided to effect it, shall, if necessary, be devoted to that purpose. As to the objection that the expenditures are extravagant, we cannot pass upon it, upon inspection of the accounts; but we feel ourselves authorized to declare that, if they have been made by the defendant in the honest exercise of his judgment, for the purpose of fulfilling the will of the testator, they ought to be allowed him.” *140 In the Marrow case, supra, the will provides: “My children I wish educated from the proceeds of the plantation and funds in hand.” On page 157 the Court says: “The children are respectively to receive such ail education as is suitable to their estate and condition in life in the section of the country where they reside. There is no suggestion that the education bestowed upon the plaintiff is not a suitable and proper one and that may perhaps be assumed as a standard for the younger children; but this must be left in some degree to the sound discretion of the executor.” Sawyer v. Dozier, 52 N. C., 7, relied on by the appellants, is not applicable to the facts in the present case. In that case Haywood S. Bell declined both the offices of executor and guardian, and one "William Shannon was appointed guardian in his place. The latter was, by certain proceedings in the court of equity, removed from the guardianship^ and Sawyer and Shannon then came to a settlement; and it appearing that the guardian had expended some $417 more than the income of the ward’s estate, the latter gave his note for the same, and executed to John Pool a deed of trust to secure the amount. The land was afterwards sold to the defendant Dozier, and a deed was made to him by Pool, the trustee, Shannon, the quandom guardian, and Sawyer, the ward. Edmund D. Sawyer is dead, and the lessors of the plaintiff are his legitimate children, and made demand before suit brought. Pearson, G. J., said: “By the will of Margaret Dozier the land in controversy is given to Edmund D. Sawyer for life, remainder to his children in fee, and in the event of his death without a child him surviving, then over; and a power is given to Haywood S. Bell to sell the land, if in his opinion a sale would promote the interest of said Sawyer. The power is naked; not coupled with any estate in Bell, and as he has not exercised it, we are at a loss to conceive of any ground to support the idea that the fact of conferring this power on him, to be exercised in his discretion, for the benefit of the tenant for life, has the legal effect of enlarging the estate of the latter, so as to give him (Sawyer) or Shannon who, for a time acted as his guardian, a right to convey the land in fee simple. Nor are we able to see how the fact that Bell is appointed by the will of Mrs. Dozier the guardian of her grandson, the said Edmund D. Sawyer, has any bearing on the question.” Bell, who had the discretion under the will, refused to exercise it, by not qualifying as executor. In citing this case, it may not be amiss to call attention to C. S., 90, which is as follows: “When any or all of the executors of a person making a will of lands to be sold by his executors die, fail or for any cause refuse to take upon them the administration, or, after having qualified, shall die, resign, or for any cause be removed from the position *141 of executor, or when there is no executor named in a will devising lands to be sold, in every such ease such executor or executors as survive or retain the burden of administration, or the administrator with the will annexed, or the administrator de bonis non, may sell and convey such lands; and all such conveyances which have been or shall be made by such executors or administrators shall be effectual to convey the title to the purchaser of the estate so devised to be sold.” The decision of numerous cases in other States are in harmony with the position here taken. We think the authorities in this State fully sustain the judgment rendered by the court below. The judgment is therefore Affirmed.