Daniel v. Upley, 1 N.C. 9, 1 Mart. 9 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 9, 1 Mart. 9

*Daniel vs. Upley.

Hill. 1 Car.

IN Ejectione firmœ, on a special verdict, the case appeared to be this:

John Upley, being seized in fee of a house, on the 26th of May 25 Eliz. by his last will and testament, disposed of it in this mannar: Item, I give and bequeath my house to Ann, my wife, to dispose at her will and pleasure, and to give it to any of my son, which she pleases.

Jermyn

argued that, by these words, the wife had a fee, and is liable to no one: but may dispose of the house to whom she pleases. And there is a great difference be-a conveyance and a will. In this case, Litt. 586. Bro. Devise 33 Litt. leaves out assignees, and this leaves a doubt. But 7 E. 6. Br. 432 renders our case quite plain. And it is clear that by the first word; to dispose at her will and pleasure, she has a fee: but the doubt is whether the last words are a limitation, viz. to any of my children which alter the fee, and clog it with a condition. Wellock’s case, 3 Rep. 21. 6 Rep. 16. But here these words do not import a fair condition, for if this be a condition, then the heir shall enter in due time, in case it be not performed. And then the intention of the will is contradicted, in as much as the wife has not the house at her will and pleasure, as the will requires it; neither can she give it to any whom she pleases, as the will gives her power to do.

Henden, Serj. contra.

I confess, that the fee passes by these words, because it has been adjudged, that if one devise that I. S. shall be his heir, it is sufficient. But, I conceive that here, by the devise, the wife has only a power to dispose; and has no sort of interest or estate by the devise; or if she has, it is only a conditional estate, clogged and limitted, with a condition to give it to the children. 33 H. 8. Br. Devise 37. A man devised that an executor should make an estate-tail to I. S. it is only an authority, the devisee has an estate-tail, the other has only an authority. Dyer 323. Lingin's case is like this. If one devises, that I. S. shall make feoffment of the testator’s lands, I. S. has an interest, because he ought to enter before he can give livery. But if he devises, that I. S. shall bargain and sell the land, then I. S. has no interest in the land, but only an authority to sell. If one devises that I. S. shall let his lands and receive the profits, during the minority of his son, and dispose &c. there I. S. has no interest, and cannot make a lease in his own name, and has only an authority, as was adjudged in this court, Tr. 41. El. Piggot and Garnish. And, therefore, I conceive that these cases will prove that the wife in this has only an authority, but no interest. But, admitting, that she has an estate by the devise: Yet, I conceive that it is clogged and limitted with the conditional power. 34. E. 3. cui in vita 19. If lands be given to a woman to dispose of &c. and she marries, still she may sell, and has an estate, and a power annexed, It is to be observed, that this disposing power and authority is collateral to the estate, and therefore may stay and remain, notwithstanding that the wife, in this case, after the death of the testator, took another husband, and she may dispose of the land, notwithstanding the coverture; as it is a collateral power. 13 H. 7. Kell. 40. If a man devises that his executors shall sell the land, and dies seized, and the heir enters and makes a feoffment, after which a stranger diffeises him, and dies seized, and other feoffments be made of this land, still the devise remains effectual, and the authority of the executors being collateral, cannot be impaired by any intervenient act. If a man devises that his feoffee may sell the reversion, he may sell without attornment, inasmuch as it passes by the will.

Doderidge, J.

If I devise land to I. S. to give and dispose to I. D. he must dispose of it to I. D. But here, it is given to dispose at her will and pleasure, which perhaps may make a difference.

Sed per Curiam. If the wife dies without feoffment, the heir shall have the land.

Afterwards other matters were moved in this case, but it depends on the above point.

And Henden moved this case. A wife is disseised and the husband releases all demands, and the wife levies a fine—the husband may enter. And he said, if a wife levies a fine as a feme sole, if the husband enter, it shall be void, otherwise the wife is barred. 16 Ass. 17. A release of all demands releases the right of entry, and the entry itself. 8 Rep. 147. And the husband in the above case cannot enter, and therefore the wife is barred. 11 H. 4. 24. Per Green. If a wife delivers goods, trespass lies, but otherwise, in the case of an infant, if he delivers goods with his own hands. Pas. 32 El. rot. 1017. adjudged to this purpose. See this case continued, postea,p. 39 and 134. 1 Cr. 678. 734