Ripley v. Armstrong, 159 N.C. 158 (1912)

May 22, 1912 · Supreme Court of North Carolina
159 N.C. 158


(Filed 22 May, 1912.)

1. Wills — Acknowledgment—Signing Sufficient.

It is sufficient acknowledgment of a will, and tlie same in effect as if tlie testatrix liad signed in the presence of the witnesses, for her to hold the signed instrument in her hands, declare it to be lier last will and testament, saying she had signed it, and request the witnesses to sign, which they did in her presence.

2. Wills — Interpretation — Intent — Testator’s Circumstances — Evidence.

The primary purpose in construing the will is to ascertain the testator’s' intent, and it is competent to consider his condition and that of his family, with all the attendant circumstances.

3. Same — Devise—Powers of Sale.

When it appears that the land of the testatrix was of comparatively little value, without sufficient income to maintain her children, the beneficiaries of her will, and that it ivas mortgaged without provision or means for releasing it, except by sale, a devise of the lands to the husband, “to use as he thinks *159best for tbe maintenance of” tbeir children, makes tbe bus ..mcl tbe trustee, and rests in him tbe power to sell- and convey tbe property in fee simple.

Appeal by plaintiff from judgment rendered by Foushee, J., 25 April, 1912; from Henderson.

Smith, Shipman, and Justice for plaintiffs.

Michael Schenclc for the defendant.

Clark, C. J.

Tbe plaintiff contracted to sell a tract of 17% acres to tbe defendant, wbo now, refuses to pay for tbe same upon tbe ground that tbe plaintiff cannot' execute a good title. Tbe plaintiff acquired title under tbe will of bis wife.

Two questions are presented on tbis appeal. It appears in tbe probate of tbe will that tbe testatrix, “bolding tbe instrument in ber bands, with ber name written at tbe bottom, acknowledged and declared tbe same to be ber last will and testament; that the same bad been signed by ber; that she then and there requested tbe witnesses to sign tbe instrument, which they did iñ ber presence and at ber request as witnesses.” This ivas sufficient. Elbeck v. Gramberry, 3 N. C., 233; Bateman v. Mariner, 5 N. C., 176. This acknowledgment was of tbe same effect as if tbe testatrix bad signed in tbe presence of the witnesses, which indeed is more than the statute requires. In re Herring, 152 N. C., 260.

Tbe provision in tbe will in controversy is as follows: “I give and bequeath to my beloved husband, J. H. Ripley, all my real estate consisting of land bouses and whatsoever it may be in Hendersonville, N. C., or wheresoever it may be found, also all my personal property to use as be thinks best for tbe maintenance of our children.” Upon tbis language, especially taken in connection with tbe attendant circumstances, we are of opinion that tbe plaintiff took as trustee, with power under tbe will to sell and convey tbe property in fee , simple. Tbe primary purpose in construing a will is to ascertain tbe intention of tbe testator from tbe language used by bim. In ascertaining such intention it is competent to consider tbe condition of tbe testator and family and all tbe attendant circumstances. Parks v. Robinson, 138 N. C., 269. In Crawford v. Wearn, *160115 N. C., 540, it was beld that the “power to invest or use” conferred upon the life tenant the power to convey in fee simple.

It appears upon the “facts agreed” in this case that the testatrix had executed mortgages upon the land described, aggregating $2,200, which were unpaid and a lien upon her land at the time of her death, and that she left no fund or personalty with which to liquidate said indebtedness; that the land is not valuable for agricultural purposes and it is without improvements thereupon except a cottage, and no income can be derived from the land sufficient to maintain the family of four children who ■survived her,' except'by a sale; that it was necessary for the plaintiff to sell the land to obtain means of maintenance for the children. Upon these facts it is placed beyond reasonable doubt that the intention and meaning of the testatrix was to vest the husband with authority to sell said land, and that he can make a good title in fee thereto.

Upon the case agreed the judgment must be