Stroud v. Morrow, 52 N.C. 463, 7 Jones 463 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 463, 7 Jones 463

H. M. C. STROUD v. CORNELIA MORROW.

A devise of “ all my property to my beloved wife, during her natural life or widow-hood, with power to dispose of the same by sale, will, or otherwise at her discretion,” was Held to confer upon her, she not having married, the power to convey the real estate in fee simple.

ActioN of COVENANT, tried before Báiley, J., at the last Spring Term of Orange Superior Court.

The defendant, Cornelia Morrow, by her deed of bargain and sale, conveyed to the plaintiff and- his heirs certain land, lying in the counties of Orange and Alamance, being the same mentioned in the plaintiff’s declaration, and by the said deed covenanted as follows : “ And the said Cornelia Morrow, for herself and her heirs, doth covenant with the said II. M. C. Stroud and his heirs, that at and immediately before the delivery of these presents, she hath a good right and title, and lawful power and authority to grant, bargain and sell the said premises, and every part thereof, unto the use of the said II. M. C. Stroud and his heirs, according to the true meaning of these presents.” The only title or authority to, or over the premises, claimed by the said covenantor is under the will of her husband, Alexander Morrow, which is as follows: “ All my property, both real and personal, without any reserve, I bequeath to my beloved wife during her natural life or widowhood, with full power to dispose of the same-by sale, will, or otherwise, at her discretion, for her and our common children’s benefit, and especially for the education of onr children and payment of all just debts. In the event of my wife’s marriage to another man, it is my will that she have such portion of my estate as the laws of North Carolina provide for widows, whose husbands have died without wills, and that the remainder be divided among my children.”

The will was duly proved before the making of the deed,, and the said covenantor has not married a second time. It was agreed that if bj7 the above will, the defendant had power to convey the land for an indefeasible estate in fee simple, a nonsuit shall be entered, otherwise a judgment to be entered for the plaintiff, and an enquiry of damages to be awarded as-upon a judgment of nil dioit.

The Court being in favor of the defendant, on the above case, gave judgment accordingly, and the plaintiff appealed.

Phillips for the plaintiff.

No counsel appeared for defendant in this Court.

Manly, J.

The question presented for decision upon the case agreed, is, as we think, free from difficulty. The wife’s estate for widowhood, iá coupled with a power of disposition by sale, will, or otherwise, absolute and unconditional. There seems to be no restriction upon it, except that discretion in which her deceased husband so entirely confided, and we are accordingly of opinion that her covenant of a right to convey as set forth in the case is true, and, consequently, the action cannot be maintained.

Our opinion is based upon the strong and explicit language employed by the testator in his will. All property is given therein to the wife during life or widowhood, with full power to dispose of the same by sale, will, or otherwise at her discretion, for her and their common children’s use and benefit, &c.

The power to convey by will is clear to the point that the estate to the wife was not simply during widowhood, with power to apply the income, but intended to. leave it to her discretion, if circumstances required" it,, to sell in. her life-time or to dispose of i't by will at her death.. The power of sale is scarcely less.significant. It would-be an extraordinary use of that term to mean by it, a power to mortgage or pledge for a limited time,, only to raise moneys or pay debts.

The power to sell, absolutely, is clear; which disposes of the case before us, and we forbear to discuss the rights of persons under the will which may arise- upon other possible contingencies. By reference to the case of Little v. Bennett, 5 Jones’ Eq. 156, it will be seen that an estate given for similar purposes to- the present, and with a power of sale for the more complete-fulfillment of these purposes, was held to be a trust estate with an absolute power of disposition, and that the estate in reversion was subject to be divested by and to the extent of the exercise of the power. The case before us,, we take it, is governed by the principles of that case..

Per Curiam,

Judgment affirmed.