Alexander v. . Alexander

Devin, J. The language used by the testator in the third item of his will clearly conveys his intention. In substance be says: “I lend to my wife the balance of my estate . . . for and during her widowhood” with full power of disposition, “and at the termination of her preceding particular estate the balance of my estate to be equally divided between my two children.” The word “lend” used in this item of the will was equivalent to “give” or “devise.” Jarman v. Day, 179 N. C., 318; Smith v. Smith, 173 N. C., 124; Sessoms v. Sessoms, 144 N. C., 121. The devise to his wife during her widowhood limited the estate given her, at most, to a life interest. Sink v. Sink, 150 N. C., 444; In re Brooks, 125 N. C., 136. Blackstone lays it down that an estate granted to a woman during widowhood will be reckoned an estate for life because the time for which it will endure being uncertain, it may possibly last for life if the contingency upon which it is to determine does not sooner happen. 2 Blackstone, 121. In Sink v. Sink, supra, the will contained the following language: “I give and bequeath to my wife the remainder of my land, ... to have and to hold to her own proper use and behoof . . . during the term of her widowhood, and after her marriage to be equally divided between my brothers and sisters.” This was held to confer no more than a life estate. In the Brooks case, supra, the devise was in these words: “I will and bequeath all my real and personal property to my beloved wife, to have and possess as long as she remains my widow. Should she marry the law is my will.” It was held that sec. 2180 of the Code (now C. S., 4162), could not be invoked for the purpose of extending the estate to a fee, as it was clearly the intention of the testator to limit it at most to an estate for life. *283 "While the gift of an estate to a person generally 'or indefinitely with power of disposition ordinarily carries a fee, this rule will not be allowed to prevail when the testator gives to the first taker by express terms an estate for life only, though coupled with power of disposition. Hambright v. Carroll, 204 N. C., 496; Roane v. Robinson, 189 N. C., 628; Tillett v. Nixon, 180 N. C., 195; Carroll v. Herring, 180 N. C., 369; Fellowes v. Durfey, 163 N. C., 305; Chewning v. Mason, 158 N. C., 578; Herring v. Williams, 158 N. C., 1. This view is strengthened by the use in this will of the words “At the termination of her preceding particular estate, I desire the balance of my estate to be equally divided between my two children.” This language is inconsistent with an intention to confer a fee simple. There was no other exception to the findings and judgment of the court below. Judgment affirmed.