Troy v. Troy, 60 N.C. 77, 1 Win. 77 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 77, 1 Win. 77

MARY TROY, Executrix of ROBERT E. TROY and ALEXANDER TROY, an infant, who sues by his Guardian, MARY TROY, vs. ALEXANDER TROY.

A gift ly will to A hr life, remainder to B in fee, with a power to A to pci! -aO <-c eo much cf the property as, in her judgment, may be necessary, yes-'s hi A -esí-ito for her :■'!>, with a power of sale apjrurtenant to her li'« (irtat-1.

And t.lw i.vprwsiji’hy the tesrut or, in subí' quet part of his will, of a doulif, 'vbethir tho power of r.ho would not mcke A the absoluto owner of tho n i.oie caíate, &n;l a direction that fo ctiVe Midi ¡mould be (to. Con-st.iiuiio. m law, ihai C shor.id navi, tin- icj,ai cMuío in too in the. niup-orij. i>: Duet, &«., do s.t c.rvy u< 0 any ¡¡.‘ate u inierc.st. i:.-(ho pi!-; ■ •:y.

The \vi!! i’> ol-o. s it.e - xp( use of*i e (-''.imUiuP-' f -.¡i i sou i -i t e u ■.li-yr-e on aR !■: ■ pr-poily. A <> -.Ids tho a do ofsiV. ■■ode ir-Aer-tir p'.Vvtr, ii. mm >o prj d-ibip, t"i l.(-r i.v.v tl’p;...r1, n d tor lie support ‘mhi eit-Uiíi.'i ¡. of B.

Thm ea*so ..'{..a vaiu-ved Columbus Oouidy, to iDin Court for trial. I! tli ouii.y for

Tim bill out’ 832, Boborfc 'P fiv.y, b ier oi hue other ’.¡veilft, which the luuhund ofíhe f.'ine phlnCff, and the-, plainiiiTrh’oc, leaving t: lust will tint! f has been proved ;¶ of which tho plaintiff "Mary L; tho executrix. After stating. in i.iibsfav.ee, the contents of the will. end that a sale of son;■; of t]ic property is necessary •to paj the debts of the testator, tho bill charges that lite defendant sets np a, claim to tho legal estate in the testator’s propel iy, and denies !ho right of the plaintiff, Mary, to cell ; and so obstruct., the. exercise of the power given totier/ The prayer is fora declaration of-the. rights of the parties, and that thei defendant be restrained from setting up any claim to-any of the property, or that be may be declared to be a trustee according to the claim be has made. •

The material parts of the will (which is made a part of the bill) are as follows :

“ It is my will and desiré, that all my property and estate of every kind and description, sha,11 belong to my beloved wife Mary during the term of her natural life, and at horddath, to my son Alexander. Should it be necessary, however, in the judgment-of my wife, -thyt any of the. property, real or personal, should be sold, then Í authorize and empower my said wife to sell all, or such part thereof, -as she may think proper, either at public or private sale, for cash or 'otherwise, and to convey the purchaser an absolute title in fee simple. But if my said wife should marry, this power #f disposing of my property shall cease and determine.”

“ Item. As I have some doubts whether the above disposition'of my property; wo«ld not, be construed in law. to vest in my wife the entire estate and title, i^twithstan-ding it is expressly limited to her for life ; I therefore do-sire, in case the intervention of a trustee be necessary in law to carry into effect the disposition which I have made of my 2>roperty, that' the whole of my said property shall he held by my brother Alexander j. Troy for the purpose of carrying, into effect my wish and desire above expressed ; that is to say, in trust for nay said wife during the term of her .natural life, and at 'her death, in trust for nay son Alexander, or in trust for such person or persons, as she may sell any of the property to, while she remains a widow, and. their heirs forever. But my said brother, Alexander' J. Troy is to he appointed trustee only in case that it should he necessary in law for carrying into effect said previsions.”

‘' It is my will and "desire that as soon as practicable alter tbe probate of this my last will and testament, my executor hereinafter hamed, shall procure a bill to be filed in the proper Court ofEquity, for tire purpose of having it declared whether or not it be necessary for the intervention of said trustee ; which'bill shall be removed into the Supreme Court i'or final hearing."

“ Item. In case my wife die or iparry before my son arrives at the age of'twenty-one years, or shall have com: pleted his education, then 1 desire and request that my brother, Alexander J. Troy, shall see that my son, Alexander, shall be properly educated, the expense of which education, 1 will and direct, shall he a charge upon the whole of my property, whether my wife he living or not."

The answer admits the facts alleged in the hill. The cause was set for hearing on the hill and answer. .

Pkausox, 0. J.

The will gives an estate to Mrs. Troy for her life, with a remainder in fee to the infant son, subject fo a power of sale by her in respect to all and erery pari of the property, in the event that, in her judgment-, it should he necessary. This is a 'power apjiurle-ncnl io her lile - estate.; and the óslale which may he enacted by its exercise will take effect out o"the life estate giv> u, to' her. ¡>s well as out of tiie remainder.

A power of i-his description'is construed more favorably than a naked power given toa stranger, or a power ap-pendnrJ,' beeaus.-, a» its exercise will be in derogation of the óslate of the pmson to whom it is given, it is less apt to be resorted -to injudiciously than one given to a stranger, or one which'does not ail'cot the estate of the. person to whom it is given.

From tbe whole will it is clear the intention of the testator was to confide in the judgment of bis wife, in respect to the necessity of selling property, either to pay his debts or for the support of herself; or for the support and education of their infant son ; and, for these purposes, (as long as she remains unmarried)- he gives her as full power to sell as he would have himself, if living. There is no reason why this intention should .not be allowed to take effect. The apprehension of the testator that, possibly, the power of sale conferred- on his wife might be construed t£so as to vest in her the absoluto title in fee simple” was groundless; for as an estate is expressly limited to her during the term of hc-r natural life, and the remainder in fee is also disposed of, there is no room for construction. It follows that the provisional appointment of a trustee has no legal effect, and the defendant, Alex. J..Troy, has no estate or interest in‘ the property ; and these provisions Lave no other effect than a tendency to show the fulness of the power conferred; and that the object was to give his wife as ample power to sell, if, in her judgment, it was necessary for the purposes above stated, as if .she- was the absolute owner.

The exercise of the power will vest in the purchaser an estate in fee simple, and he will not bo bound to seo to tbe application of the purchase money. • That will constitute a fund to be held by Mrs. Troy, • in ‘trust for the payment of the debts of her husband ; and in trust for the support of herself and the support and education of the infant child. And in such part as may not bo required for these purposes, she will -take a life estate with remainder in fee to the child- Like' all other trustees, she will be subject to the control of a Court of Equity, in respect to the proper application and management of the trust, fund.

There will be a decree declaring the rights of the parties. .The costs will be paid by the 'plaintiff, Mary Troy, out of tire assets of the estate.