Sawyer v. Dozier, 52 N.C. 7, 7 Jones 7 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 7, 7 Jones 7

Den on the demise of CALEB SAWYER and others v. E. L. DOZIER.

A naked authority to sell, conferred by will on an executor, who was also appointed guardian, both of which offices were renounced, and the power not exercised, was Held, not to enlarge a life-estate given to the ward into a fee, so a£ to. enable him, or any other person, to convey a fee..

Action of ejectment, tried before Manly, J., at the last term of Camden Superior Court.

Both parties claimed under the will of Margaret Dozier, which was as follows, viz:

“1st. To my grandson, Edmund D. Sawyer, I lend the use of all my lands during his life, and, at his death, to be equally divided amongst his children, lawfully begotten in wedlock; but, in case he should die without such child or children, then, and in that case, to fall and descend to my daughter, Elizabeth Nash, to her and her heirs forever. All the balance of my estate, of every kind and description whatsoever, I lend to iny grandson, Edmund D. Sawyer, during his life-time, and, .at his death, to his children, lawfully begotten in wedlock, and, in case he should die without such children or child, then the balance of said estate, not made use of by said Edmund D. Sawyer, by his .guardian, to be equally divided among all my heirs, &c. All my perishable estate of every sort, together with negro man, Isaac, and woman, Jinny, I wish my ■executor to sell to the best advantage, and purchase two or three negro boys for my grandson, Edmund D. Sawjmr, and to do whatever else he may think best, either in buj'ing or selling, or hiring out, &c. I do hereby ordain Haywood S. Bell, executor to this my last will and testament; moreover, I do hereby ordain, nominate and appoint said Haywood S. Bell, guardian to my grandson, Edmund D. Sawyer, with full and absolute power and authority to purchase, sell, or otherwise dispose of any property above lent or -given, as to him may seem calculated to promote the interest of the same.”

Haywood S. Bell declined both the offices of executor and guardian, and one William Shannon was appointed guardian in his place. The latter rvas, by certain proceedings in the Court of Equity, removed from the guardianship, and Sawyer .and Shannon then came to a settlement; and it appearing that the guardian had expended some $417 more than the income of the ward’s estate, the latter gave his note for the same, and executed to John Pool a deed of trust to secure the amount. The land was afterwards sold to the defendant, Dozier, and a •deed was made to him by Pool, the trustee, Shannon, the quondam guardian, and Sawyer, the ward.

Edmund D. Sawyer is dead, and the lessors of the plaintiff are his legitimate children, and made demand before suit brought.

The foregoing facts were presented in a case agreed, and submitted for the judgment of the Court.

Ills Honor being of opinion with plaintiff, on the case agreed, gave judgment, accordingly, from which the defendant appealed.

Jordan, for the plaintiff.

Johnson, for the defendant.

Pearson, C. J.

By the will of Margaret Dozier, the land in controversy, is given t-o Edmund D. Sawyer for life, remainder to his children in fee, and, in the event of his death, without a child him surviving, then over; and a power is given to Haywood S. Bell to sell the land, if in his opinion, a sale would promote the interest of said Sawyer.

The power is naked; not coupled with any estate in Bell, and as he has .not exercised it, we are at a loss to conceive of any ground to .support the idea, that the fact of conferring this power on him, to be exercised in his discretion, for the benefit of the tenant for life, has the legal effect of enlarging the estate-of the latter, so as to give him or Shannon, who, for a time acted as his guardian, a right, to convey the land in fee simple. Nor, are we able to see how the fact that Bell is appointed by the will of Mrs. Dozier the guardian of her grandson, the said Edmund D. Sawyer, has any bearing on the •question.

Whether the testatrix attempted to appoint Bell, guardian for her grandson, because he was under age, (how the fact was, is not stated in the case agreed) or, because she considered him to be of weak mind, is immaterial, for under no view of the subject could that give, either the grandson or his quondam guardian, Shannon, any right to convey more than a life-estate. So, the estate of the defendant determined upon the death of Sawyer, and the title was in the lessors of the plaintiff, who are his children, and took the remainder under the will.

Per Curiam,

Judgment affirmed.