Schaeffer v. . Haseltine

Barnhill, J. Subject to the intervening life estate devised to Mrs. Davidson, a one-half interest in Beaufort Lodge was devised to the trustee for the use of Frances Carter Schaeffer for life, with power in her to appoint by will the ultimate takers. ' This limitation over was subject to be defeated by a sale of the property by the trustee with the consent of the widow. The property was not sold and Mrs. Schaeffer died, leav *489 ing a will in which she exercised the power, designating her two children, the individual plaintiffs, as the ultimate takers. Therefore, upon the death of Martin W. Schaeffer, the individual plaintiffs became the owners in fee of the one-half interest in the locus which was devised to their mother for life. This was the conclusion of the court below to which no exception was entered. Its correctness seems to be conceded. The plaintiff trustee, although not a party to the contract of purchase and sale, has ratified the same and agreed to join in the execution of the deed upon the payment to it of one-half of the purchase price. Hence this proceeding has resolved itself into a controversy over the ownership of the one-half interest therein originally devised to Laura Carter for life. Therefore, the question posed for decision is this: Did Laura Carter by will effectively designate the ultimate takers of her one-half interest in the locus? If so, plaintiff trustee still holds title to a one-half interest therein for the use and benefit of fame plaintiff for life with remainder to plaintiff Theodore W. Schaeffer, “discharged of the trust.” The court below answered the question in the affirmative. In that conclusion we concur. It is an axiomatic rule of construction that the intent of the testator, as expressed by him, is to be ascertained from the four corners of the will, Trust Co. v. Board of National Missions, 226 N. C., 546, 39 S. E. (2d), 621, and cited cases, and that this intent is the guiding star which must lead to the ascertainment of the meaning and purpose of the language used. Smith v. Mears, 218 N. C., 193, 10 S. E. (2d), 659, and cited cases. "Where there are apparent inconsistencies in the will, they are to be reconciled, if reasonably accomplishable, so as to give effect to each in accordance with the general purpose of the will. Holland v. Smith, 224 N. C., 255, 29 S. E. (2d), 888. A careful consideration of General Davidson’s will in the light of these principles leads to the conclusion that he had and expressed a definite intent in respect to the locus in controversy. He devised his home site to plaintiff trustee for the use and benefit of his wife for and during her natural life with power in the trustee, by and with the consent of his widow, to sell the same and reinvest the proceeds in other property. In the event it was sold and reinvested, then the widow had the power of appointment of the ultimate takers of the property so acquired. On the other hand, if the property was held intact and not sold during the life of the first taker, then the trustee, at the death of Mrs. Davidson, was to continue to hold the same in trust for the joint use of Laura Carter and Frances Schaeffer for and during their natural lives. Mrs. *490 Schaeffer was vested with, authority to designate the ultimate takers of a one-half interest therein by will only, but. Laura Carter was granted authority to dispose of her one-half thereof in fee, either by deed or will. Thus it appears that the testator vested the trustee with authority, at the request or by and with the consent of Mrs. Davidson, to sell the home place and thereby defeat the limitation over to the testator’s two sisters-in-law. If Mrs. Davidson elected to have the property sold, thereby defeating the limitation over, then she should name the ultimate takers of the after acquired property. Hence the powers of appointment or disposition vested in Frances Schaeffer and Laura Carter were subject to be defeated by a sale during the life of the first taker. But the property was not sold during the life of Mrs. Davidson. Hence the respective powers vested in the two sisters were not defeated. Laura Carter, at the death of the testator, became seized of a vested beneficial interest in the Beaufort Lodge property. It is true there was an intervening life estate. Even so, she, under the'will, became the beneficial owner thereof jointly with her sister, for life, with the right to claim the benefits thereof at the death of the first taker. This was a fixed interest to take effect after the particular estate was spent. Priddy & Co. v. Sanderford, 221 N. C., 422, 20 S. E. (2d), 341. As the one contingency, upon the happening of which her interest would be defeated, never occurred, she continued to be the owner of this beneficial interest until the date of her death, and her power of disposition was at all times exercisable by her from and after the death of the testator. Such disposition as she should make could be defeated only by a sale of the property by the trustee for reinvestment during the life of Mrs. Davidson. In effect, she was made the agent through whom the testator selected the takers of the remainder, which was otherwise undisposed of. It was through her, in the event the property remained intact during the life of his widow, he was to become wholly testate. Hardee v. Rivers, ante, 66; Trust Co. v. Williamson, ante, 458. In ,her will she made certain specific bequests of personal property and then devised “all the rest and residue” of her estate “both real, personal and mixed, wherever situate” to plaintiff trustee in trust to pay the income therefrom in equal shares to -her two sisters for their natural lives and at the death of either of them to the survivor. After the death of the survivor, the trustee is required to pay the income to the feme plaintiff during her natural life and at her death to pay the remainder to Theodore ~W. Schaeffer, discharged of the trust. The prevailing rule to be followed in determining whether a conveyance, by deed or will, of property in general terms or by general description constitutes a valid exercise of a power of disposition or appointment is to be found in 41 A. J., at page 836 et seq. See also Anno, 91 A. L. R., *491 433. This rule applies in this State in respect to conveyances by deed. Matthews v. Griffin, 187 N. C., 599, 122 S. E., 465; Denson v. Creamery Co., 191 N. C., 198, 131 S. E., 581; Walsh v. Friedman, 219 N. C., 151, 13 S. E. (2d), 250; Tocci v. Nowfall, 220 N. C., 550, 18 S. E. (2d), 225. But where the question involved is as to whether the power has been exercised by testamentary devise it has been abrogated by statute and a new and different rule substituted therefor. “A general devise of the real estate of the testator, or of his real estate in any place or in the occupation of any person mentioned in the will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper; and shall 'operate as an execution of such power, unless a contrary intention shall appear by the will.” G. S. 31-43; Walsh v. Friedman, supra. As there is nothing in the will of Laura Carter to indicate any contrary intent, it must be construed as a valid exercise of the power of disposition. The property she had the power to devise was a part of her real estate within the meaning of the language used in her will. In this connection it is not amiss to note that the inconsistencies in the Davidson will, certainly as they relate to this particular property, are more apparent than real. In the event the home place was held intact and not sold during the life of Mrs. Davidson, Laura Carter alone had the authority to designate the ultimate takers of her one-half interest. It was only in the event the property was sold or Laura Carter failed to convey or devise her one-half that any right or power of appointment in respect thereto accrued to Mrs. Davidson. The other powers vested in her in section 4 clearly relate to property other than the locus. For the reasons stated the judgment below must be Affirmed.