Wachovia Bank & Trust Co. v. Heymann, 220 N.C. 526 (1941)

Dec. 10, 1941 · Supreme Court of North Carolina

220 N.C. 526

WACHOVIA BANK & TRUST COMPANY et al. v. FLORA HEYMANN.

(Filed 10 December, 1941.)

Wills § 33f — Devise of life estate with power of disposition by act inter vivos empowers devisee to mortgage property.

Testator devised certain property to one of his sons for life with remainder to the “children of his body absolutely in fee forever,” and by codicil, which ratified and confirmed the will except as changed thereby, gave the devisee “full power to sell or dispose” of the property devised “and receive the proceeds thereof.” Held: The power of disposition granted in the codicil empowered the devisee to sell or dispose of the property in any manner except by will, which power included the power to mortgage as well as the power to convey by deed.

Devin, J., took no part in the consideration and decision of this case.

Appeal by defendant from Johnston, Special Judge, at November Term, 1941, of BuNCOmbe.

Controversy without action submitted on agreed statement of facts.

The plaintiff, being under contract to convey to the defendant a lot of land in the city of Asheville, duly executed and tendered deed therefor sufficient in form to invest the defendant with a fee-simple title to the property, and demanded payment of the purchase price as agreed, but the defendant declines to accept the deed and refuses to carry out her agreement to buy or to make payment of the purchase price on the ground the title offered is defective.

Tbe court being of opinion tbat upon tbe facts agreed, tbe deed tendered was sufficient to convey a fee-simple title to tbe lot in question, gave judgment for tbe plaintiffs, accordant witb tbe terms of submission, from wbicb tbe defendant appeals, assigning error.

Parker, Bernard & Parker for Wachovia Bank & Trust Co., plaintiff, appellee.

J. Q. Merrimon for Asheville Mission Hospital, plaintiff, appellee.

J. A. Patla for defendant, appellant.

Stacy, C. J.

On tbe bearing, tbe question in difference was made to turn on wbetber Frank A. Mears acquired tbe right to sell and convey tbe property in fee simple and also tbe right to mortgage it under tbe following clause, as enlarged by tbe codicil, in tbe will of G-. Augustus Mears, late of Buncombe County, this State :

“Sixth: I give and devise to my son, Frank A. Mears, tbat certain bouse and lot situate on tbe west side of South Main St. in tbe City of Asheville, N. C., now occupied as a garage, for and during bis natural life, and at bis death to tbe children of bis body absolutely in fee forever.”

In a codicil, tbe testator ratified and confirmed bis will except as changed thereby, and among other things, provided:

“I further modify my last will and testament in this respect. Tbat is, each of my said sons may or shall have full power to sell or dispose of any or all of tbe property in this will devised to them in fee and receive, tbe proceeds thereof as to them seems best or proper.”

Plaintiff acquired title under foreclosure of deed of trust' given by Frank A. Mears and wife to Haywood Parker, Trustee, to secure an indebtedness of $12,000 due to a third party.

It was held in Smith v. Mears, 218 N. C., 193, 10 S. E. (2d), 659, in construing this same codicil, tbat it bad tbe effect of annexing as appurtenant to tbe life estate, originally created by tbe will, tbe power of sale or disposition in tbe life tenants. Herring v. Williams, 153 N. C., 231, 69 S. E., 140; Parks v. Robinson, 138 N. C., 269, 50 S. E., 649. This being so, tbe only additional question now presented is wbetber tbe power of sale or disposition given in tbe codicil includes tbe power to mortgage. Tbe trial court answered in tbe affirmative, and we approve. Ferrell v. Ins. Co., 211 N. C., 423, 190 S. E., 746.

It will be observed tbat tbe testator ratified and confirmed bis will in tbe codicil, except as changed thereby, and to tbe power of sale or disposition be added tbe expression, “and receive tbe proceeds thereof as to them seems best or proper.” This appended clause would seem to contemplate a sale or disposition by act inter vivos of any kind in further-anee of the benefit intended to be conferred on the devisees, including a conditional sale by mortgage or deed of trust. Hicks v. Ward, 107 N. C., 392, 12 S. E., 318. See Annotations, 92 A. L. R., 882; 21 R. C. L., 780.

The result is an affirmance of the judgment below.

Affirmed.

Deven, J., took no part in the consideration and decision of this case.