Smathers v. . Moody

Burweli,, J. : The testator, whose intention is the great object of inquiry in our effort to correctly construe his will, seems most naturally to have considered four persons — his wife and his three unfortunate sons — the special objects of his provident care. To his “beloved wife,” as he calls her, he gives the home where he and she, with the blind boys, lived, and other lands, and all the furniture, and certain slaves and stock, indicating most unmistakably his wish and purpose that the home, as he left it, should be the home of his widow. ITis intentions as to her are plain. It will be noted that he makes no provision for his three blind children during the life of his wife, in whose “ undisturbed possession” he directed “all the above named articles ” should remain “ during her natural life-time,” thus indicating his entire confidence that so long as the mother lived they would be cared for by her out of the property thus given to her. But he is careful to provide for these unfortunates after the death of the mother ; and as he showed, by giving them nothing during their mother’s life, his belief that they were helpless and in need of constant care, so lie further exhibited that belief by his provision for them after her demise. The property, including the land described in the complaint, was then to come under the management of the executor of his will for the support of his three blind sons equally. His language show's an evident intent that they should neither be burdened bjr nor entrusted with the management of the estate from which he wished them to be supported ; and while he says that these lands and the other property named shall “ descend ” to them, and *795 “become tlieir property” and “enure” to them, and upon the death of one these should enure and become the “ property of the surviving ones,” all these expressions are controlled and explained by the provision that at the death of that surviving one “ all the property that remains ” shall be sold by the executor and the money divided among his grandchildren of whatever name. AVe think it very plain that the testator’s intention was that upon the happening of this event — the death of the last survivor of the three blind sons — all the property committed by him to the management of his executor for their support, the land and as much of the personal property as had not been consumed or lost, should then be sold for division as above stated. Since, under this construction of the will, it is the duty of the plaintiff administrator to sell the land described in the complaint, it is his right and his duty, standing as he does in the place of the executor, to take possession of that land that he may in a proper manner discharge the trust imposed upon him. He has all the rights and powers and is subject to the same duties as if he had been named as executor. The Code, §2168. The executor of this will was expressly charged with the management of this land, which implied the possession thereof, during the life of the three blind children, and it is clearly implied that his possession was to continue till he had made sale thereof for the purpose mentioned in the will. As the executor could recover the possession of this land if he were living (The Code, §1501) so can the plaintiff do, being clothed with all his rights and powers. McAlpine v. Daniel, 101 N. C., 550; The Code, §§2168, 2166. Such being the right of the plaintiff under the will which he has been appointed to execute, it follows that the demurrer was properly overruled. The effect of it was to *796 admit the truth of all the allegations of the complaint, among which was one that defendants unlawfully and wrongfully withheld the possession from the plaintiff. He avers a right to the possession, which we adjudge to be valid if the facts upon which he says it rests are true, and a wrongful withholding of that possession by defendant. He is entitled to judgment unless an answer is filed. No Error. Affirmed.