Alexander v. Alexander
| Decision Date | 15 June 1936 |
| Docket Number | 749. |
| Citation | 186 S.E. 319,210 N.C. 281 |
| Parties | ALEXANDER v. ALEXANDER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Hill, Special Judge.
Action by Lilla Y. Alexander, executrix of the estate of J. E Alexander, Sr., deceased, against Abner Alexander, Frances Wingfield Alexander, and others, in which Joe W. Johnson, as guardian ad litem of defendant Frances Wingfield Alexander was added as a party defendant. From the judgment rendered plaintiff and defendant Frances Wingfield Alexander, by her guardian ad litem, appeal.
Affirmed.
Devise to testator's wife of balance of his estate, "for and during her widowhood," limited her estate to life interest at most, though will gave her full power of disposition, especially in view of words therein, "at the termination of her preceding particular estate, I desire the balance of my estate to be equally divided between my two children."--
Action to construe certain provisions in the will of J. E Alexander, Sr., deceased, and heard upon agreed statement of facts.
The testator died leaving a widow, the plaintiff, and two children, one a son by a former marriage, and the other, a daughter by the last marriage, Frances Wingfield Alexander, represented here by a guardian ad litem.
The testator's estate consists largely of real estate of the appraised value of $52,000, with indebtedness of about $16,000.
In item 3 of the testator's will is contained the following provision: "I lend to my said wife the balance of my estate not covered in items one and two above, for and during her widowhood, and authorize in as full and ample manner as I am able to do for her to sell any part of it she may think desirable, without any order of court, and to execute such conveyance as may be necessary, and not to limit herself in any amount she may wish to spend; and at the termination of her preceding particular estate I desire the balance of my estate to be equally divided between my two children."
The principal controversy was as to the proper construction of the quoted provision in the will. Plaintiff contended that this gave her a fee-simple estate in the property devised, while the guardian ad litem for infant defendants presented the opposite view.
The court below held that, while the plaintiff had full power of disposition of the property and to the use of the proceeds, so much of the property or its proceeds as remained unused or undisposed of at the time of her remarriage or death should be equally divided between the testator's two children.
From judgment in accordance with this ruling, the plaintiff and the defendant Frances Wingfield Alexander, by her guardian ad litem, appealed.
W. T. Wilson, of Winston-Salem, for plaintiff-appellant.
Joe W. Johnson, of Winston-Salem, for defendant-appellant.
The language used by the testator in the third item of his will clearly conveys his intention. In substance he says: "I lend to my wife the balance of my estate * * * for and during her widowhood," with full power of disposition, "and at the termination of her preceding particular estate the balance of my estate to be equally divided between my two children."
The word "lend" used in this item of the will was equivalent to "give" or "devise." Jarman v. Day, 179 N.C. 318, 102 S.E. 402; Smith v. Smith, 173 N.C. 124, 91 S.E. 721; Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687.
The devise to his wife during her widowhood limited the estate given her, at most, to a life interest. Sink v Sink, 150 N.C. 444, 64 S.E. 193; In re Brooks' Will, 125...
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