Woodard v. ClarkAnnotate this Case
66 S.E.2d 888 (1951)
234 N.C. 215
WOODARD et al. v. CLARK et al.
Supreme Court of North Carolina.
October 10, 1951.
*890 Brooks, McLendon, Brim & Holderness, Greensboro, for plaintiff, appellants.
Lucas & Rand, Wade A. Gardner, Carr & Gibbons, and Wiley L. Lane, Jr., all of Wilson, for defendant, appellees.
The rules controlling the construction of a will are variously stated in numerous decisions of this court. They all come to this: The objective of construction is to effectuate the intent of the testator *891 as expressed in his will, for his intent as so expressed is his will. Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369, and cases cited.
A consideration of the language contained in the Clark will in the light of this rule leads us to the conclusion that the devise to the plaintiff does not vest her with an absolute, unrestricted title to the property she received under the will.
It is true that a devise of real property shall be construed to be a devise in fee simple "unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity", G.S. § 31-38, and a devise generally or indefinitely, standing alone, constitutes a devise in fee simple. Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16, and cases cited. But here the devise was made "subject to the other provisions of my Will, both hereinbefore and hereinafter contained." Thus the testator, by reference, incorporated all the provisions of Item 5 of the codicil in, and made them a part of, Item 15 and subjected the devise to the limitations thereby imposed.
These provisions of the will clearly express intention of the testator that plaintiff should take an estate in the residuary devise of less dignity than a fee simple.
The language in the codicil, "I have no desire to hamper or restrict her in the ownership of the property * * * but I do desire in the event she dies without issue surviving, that the property which I have given to her * * * shall pass to such of her kindred as are of my blood, as hereinafter named", is inseparably tied in with the succeeding positive disposition of the property in the event plaintiff shall die without issue surviving. "The property passing under this provision shall be divided"; "shall each take one part"; "the property is to be divided"; "shall have such part" are not words of recommendation, wish or desire. They are imperative and dispositive in nature, effectively devising the property to others in the event plaintiff should die without issue surviving. Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205.
This conclusion is supported by at least two other provisions in the codicil which clearly indicate the testator intended that plaintiff should take less than a fee absolute. He provides a method of ascertaining, at the death of plaintiff, that portion of her then estate which represents the devise to her. He then, later, says: "I have heretofore given my daughter large sums of money. This Will is in no wise to affect her disposition of that or of any sum which she derived from any other source, it being my purpose and intent that this provision in my Last Will and Testament (Item 5 of the codicil) shall only apply to the property which she takes hereunder." Why provide for the separation of her estate at the time of her death, or stipulate that the conditions contained in the will shall not apply to property he had given her during his lifetime, save to make clear his intent that the conditions shall, as he unequivocally states, limit the estate devised?
The power of disposition vested in plaintiff is not sufficient to bring this devise within the line of cases relied on by plaintiff. The testator does not confine the limitation over to property "not used by her" or property she does not consume as in Barco v. Owens, 212 N.C. 30, 192 S.E. 862; or to property which the plaintiff "die[s] possessed of", as in Carroll v. Herring, 180 N.C. 369, 104 S.E. 892, 895; or "what is left" after a power to "use and spend as he chooses, without any restriction", as in Roane v. Robinson, 189 N.C. 628, 127 S.E. 626, 627; or what shall "remain unconsumed and undisposed of" pursuant to a power "to use, consume and dispose of same absolutely as she shall see fit" as in Heefner v. Thornton, 216 N.C. 702, 6 S.E.2d 506, 508; or "whatever property there is left" pursuant to power "to do as they like with this property" as in Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368.
An unrestricted power of disposition in the first taker is implicit in the expressions "what remains", "such portion as may remain undisposed of" and the like.
*892 Here the limitation over is of the corpus of the estate devised to plaintiff. Nowhere in the will is she, either expressly or impliedly, vested with authority to consume, give away, or dispose of any part of the principal for her own use or benefit.
Unquestionably she is granted the power to sell and convey any part of the property. However, this power must be construed in the light of the other provisions of the will, particularly of Item 5 of the codicil. It is inseparably connected with and attached to the discretionary authority to exchange, convert, invest, and reinvest any part of the property as changing conditions may require. As said in Chewning v. Mason, 158 N.C. 578, 74 S.E. 357, 358, 39 L.R.A.,N.S., 805: "There is a marked distinction between property and power." When she disposes of any part of the corpus, she is to receive a quid pro quoits equivalent in cash or securitiesand the property received in exchange becomes a part of the devised estate in lieu of that which is conveyed.
The court below entered judgment that plaintiff is seized of a defeasible fee only. But the term "defeasible fee" denotes a base or qualified fee in realty. It is peculiar to the law of real property, and is not ordinarily used to denote an estate in personalty.
The owner of a base or qualified fee has the right to the present possession, use, and control of the property. Pendleton v. Williams, 175 N.C. 248, 95 S.E. 500; Bunting v. Cobb, N.C., 66 S.E.2d 661. He does not, however, have the power to sell and convey any part of the property and vest the purchaser with absolute title. This authority is vested in plaintiff. It would seem, therefore, that the adjudication does not adequately define the nature and quality of plaintiff's title.
It is true the court further adjudged that plaintiff holds title to the property "subject to all the limitations, restrictions, qualifications and conditions" contained in the will. The plaintiff, however, prays the court to fix and declare the force and effect of these conditions and qualifications and define the exact nature of her title and her rights in and to both the personal property and the real estate bequeathed and devised to her. She is entitled to a specific answer to her prayer. This the court failed to give.
Is the language of the codicil sufficient to create a trust? If not, just what are the limitations upon plaintiff's title? At common law there could be no limitation over of an estate in personal property without the intervention of a trustee. Brown v. Pratt, 56 N.C. 202; Speight v. Speight, 208 N.C. 132, 179 S.E. 461. Does that rule still prevail in this State? Ernul v. Ernul, 191 N.C. 347, 132 S.E. 8; Baker v. Atlantic Coast Line R. Co., 173 N.C. 365, 92 S.E. 170, L.R.A.1917E, 266. If so, is it controlling here? These and perhaps other questions lie at the root of the problem plaintiff's petition presents to the court. As yet they have not been adequately answered. For that reason the cause must be remanded to the end the court may spell out plaintiff's rights and define the limitations attached to her title to the property involved.
Why doesn't this court perform this judicial function and be done with it? Simply because this court possesses no original jurisdiction in such matters. Its duty is to review the decisions of the superior courts of the State. The court below must exercise its original jurisdiction. If the parties are not then satisfied with the judgment entered they may bring the cause back for review.
Counsel have filed comprehensive briefs. While we have not deemed it necessary at this time to cite all the cases to which our attention has been directed, they have, none the less, been of material assistance to the court. However, counsel do not undertake to draw any distinction between the real and the personal property. Perhaps there is none. In any event, it is "a hole worth looking into."
Error and remanded.
VALENTINE, J., took no part in the consideration or decision of this case.