Fletcher v. . Bray

BbogdeN, J. The briefs of the parties and the oral argument apparently limit the controversy to the value of the timber; hence the question of law may be stated as follows: Did the life tenant, Ida E. Cartwright, under and by virtue of the last will and testament of George W. Cartwright, have the power to sell the standing timber and use the proceeds thereof for her own benefit? At the threshold of inquiry two theories of interpretation of the pertinent portions of the will of George W. Cartwright are manifest. The first theory is that item 2 of the will devises to Ida E. Cartwright a life estate in the entire property with remainder over to the plaintiffs. Furthermore, that standing timber is an integral part of the inheritance, and that, therefore, power to convey timber and appropriate the proceeds thereof results in clothing the life tenant with power to convey the fee, and thus destroys or certainly impairs and diminishes the estate of the remaindermen. Upon this aspect of the case the law, as announced in this jurisdiction, is expressed in Griffin v. Commander, 163 N. C., 230, 79 S. E., 499. The Court, quoting with approval the rule adopted by the New Jersey Court, said: “Where an estate for life is expressly given and a power of disposition is annexed to it, in such case the fee does not pass under such devise, but the naked power to dispose of the fee-. It is otherwise in case there is a gift generally of the estate, with a power of disposition annexed. In this latter case the property itself is transferred. . . . The test in a case of this kind is whether the testator expressly limits the devise of the first taker to a life estate by specific language.” The general principle thus expressed is supported by many decisions in this jurisdiction, notably: Long v. Waldraven, 113 N. C., 337, 18 S. E., 251; Chewning v. Mason, 158 N. C., 578, 74 S. E., 357; Darden *767 v. Matthews, 173 N. C., 186, 91 S. E., 835; White v. White, 189 N. C., 236, 126 S. E., 612; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Cagle v. Hampton, 196 N. C., 470, 146 S. E., 88; Helms v. Collins, 200 N. C., 89, 150 S. E., 676. Planting themselves upon the principles of law announced in the foregoing decisions the plaintiffs assert that Ida E. Cartwright had the right to sell the timber upon the land and vest an indefeasible title thereto in the purchaser, but that when she received the proceeds of the sale of a part of the inheritance, she held the same as trustee for the remaindermen. Consequently, when she invested such proceeds in securities, the remaindermen are entitled to such securities remaining in her possession at her death. Hence, the question arises: Was Ida E. Cartwright a trustee for the remaindermen? Stripped of technicality and legal refinement, a trust rests upon duty; that is to say, if the power of disposition is to be exercised for a particular person or for a particular class, or for a specified purpose, it is the duty of the donee of the power to exercise it. This is illustrated by the case of Ripley v. Armstrong, 159 N. C., 158, 74 S. E., 961, and other cases of like tenor. The power in the Armstrong case was expressed in these words: “to use as he thinks best for the maintenance of our children.” Here the power was to be exercised for the support of the children, and, consequently, a duty was thereby imposed upon the donee of the power to use the property for a specific purpose. In the case at bar, the power of disposition is not coupled with a trust. The theory of interpretation of the will of George W. Cartwright asserted by the defendants, is that Ida E. Cartwright was authorized and empowered to sell the timber. Hence, her act in making the sale was rightful. Furthermore, as the power of disposition was general, she had a right to appoint herself as the beneficiary of the power upon the principle of law announced in Hicks v. Ward, 107 N. C., 392, 12 S. E., 318. In the final analysis, the conclusion to be reached upon the facts must rest upon an interpretation of the will of George W. Cartwright, and, of course, all the law books teach us that interpretations of a given instrument ordinarily are as variable as the particular mental attitudes of interpreters. At the outset, it is manifest that George W. Cartwright, having no children, was primarily solicitous of the comforts and welfare of his wife. This solicitude led him to give his entire estate to his wife for life. Moreover, in item 2 he devises the land and consequently the standing timber thereon to his wife for life with the remainder to the plaintiffs. This was a final disposition of his entire estate. But apparently *768 be was not satisfied witb tbe final disposition so made, and consequently, in a succeeding and separate item of bis will, wrote these words: “It is my will and desire tbat my said wife, Ida F. Cartwright, shall have the privilege to dispose of any or all of the standing timber on the lands herein devised as she may think best.” Thus, he excepts the timber from the fee devised in item 2; that is to say, he severs the timber from the fee and authorizes his wife, the life tenant, to exercise uncontrolled dominion thereof. The court holds the opinion that the standing timber was severed by the testator from the fee and the absolute dominion thereof given the wife, and such severance was designed for her benefit rather than for the benefit of a nephew and grand-nephews and grandnieces. Therefore, if Ida F. Cartwright, upon the sale of the timber, was entitled to hold the proceeds in her own right and as her own property, she had the power to invest the money in securities and to hold the same also in her own right. Consequently, by virtue of her will the defendants are entitled to the proceeds of the timber or the securities purchased by Ida F. Cartwright with such proceeds. The Court is not unmindful of the last paragraph in the opinion of Darden v. Matthews, 173 N. C., 186. However, that case involved the sale of the entire property, and the court was evidently proceeding upon the theory that the life tenant had only a naked power to sell without any suggestion of dominion or ownership of the proceeds of the sale. Reversed.