Carroll v. Herring

• Decision Date: 17 November 1920
• Docket Number: 300.
• Citation: 104 S.E. 892,180 N.C. 369
• Parties: CARROLL v. HERRING ET AL.
• Court: North Carolina Supreme Court

104 S.E. 892

180 N.C. 369

CARROLL v. HERRING ET AL.

No. 300.

Supreme Court of North Carolina

November 17, 1920

Appeal from Superior Court, Cumberland County; Allen, Judge.

Action by S.W. Carroll against Mrs. T. D. Herring and others to remove a cloud on title. Judgment for defendants, and plaintiff appeals. Affirmed.

Where testator gives an estate for life only by certain and express terms and annexes to it the power of disposition, the devisee for life will not take an estate in fee, notwithstanding a naked gift of power of disposition.

The case was as follows:

James Carroll, Sr., died, leaving a will in which he devised, among other things, two tracts of land to his son James A. Carroll. The item of said will by which this devise was made reads as follows:

"I give, bequeath and devise to my son James A. Carroll, two hundred ($200.00) dollars, to be paid by my executors, and I devise to him the ten acres of land known as the Pearce land, on which he has built a house where he lives. Also 37 acres which I bought of Warren Carver, and lying east of the Holly land, both said tracts to said James A. Carroll in fee, but if he die without heirs possessing these lands or either tract, with remainder to the heirs of J. W Carroll."

A. M Moore, of Fayetteville, for appellant.

Nimocks & Nimocks, of Fayetteville, for appellees.

WALKER J. (after stating the facts as above).

Plaintiffs admit that, about the year 1902 or 1903, and prior to his death, James A. Carroll conveyed such interest as he had in the 37 acres of land, lying east of the Holly land, and that he was never in possession of this land again. The last clause in the above item, by which this 37 acres of land was devised, shows clearly that it was the intention of the grantor for his son James A. Carroll to have a fee-simple estate in the land devised to him, to do with and dispose of as he saw fit. This last clause is susceptible of but one meaning. What words could the testator have used to more clearly express his desire than, "both of said tracts to the said James A. Carroll in fee, but if he died without heirs possessing these lands, or either tract, with remainder to the heirs of J. W. Carroll"?

It cannot be seriously contended that the testator intended that the heirs of James A. Carroll should be in the possession of the lands at his death. It is true that, by inclosing the words "without heirs" in commas, the intent could have been more quickly and surely discovered.

The intention of the testator as expressed in his will is not controlled by the punctuation therein, which may be disregarded, where it conflicts with the manifest intention of the testator, and by so doing the meaning of the will is made more obvious. The court may also supply punctuation for the purpose of clearing up an ambiguity in the will, except in cases where no real ambiguities exist other than that which the punctuation itself creates. 40 Cyc. 1403 (g).

If the testator had desired, or intended, to convey a life estate only, with remainder over, he would not have inserted the words "or either tract," for certainly, if the devisee had the power to convey one tract, he had the power to convey both.

When real estate shall have been devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that testator intended to convey an estate of less dignity." Pell's Revisal, § 3138; Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904.

Having devised an estate in fee, it is said that there was no estate left in testator to dispose of. If one devise in fee simple, he cannot make a limitation over by way of executory devise without cutting down the first fee, in order to make room for the second; for, after giving a fee simple absolutely, there is no part of the estate or interest left in him. So if one devise in fee, without an express limitation, and give a general power to dispose of the land, he cannot make a limitation over to a third person in case the first taker dies without disposing of the land, or as to such parts as he does not dispose of, for the general power confers the absolute ownership and leaves nothing in the devisor. This was said by Chief Justice Pearson, in McDaniel v. McDaniel, 58 N.C. 353.

"A devise of an estate generally or indefinitely, with a power of disposition over it carries a fee." Patrick v. Morehead, 85 N.C. 62, 39 Am. Rep. 684; Herring v. Williams, 158 N.C. 1, 73 S.E. 218.

"Having annexed a condition after devising a fee, the condition is void." Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122, 3 L. R. A. (N. S.) 668.

Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition, or to him, his heirs and assigns, forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy. The only exception to such a rule is where the testator gives to the first taker an estate for life only, by certain and express terms, and annexes it to the power of disposition. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the naked gift of a power of disposition. Schouler on Wills, Executors & Adm'rs., pp. 703, 594, in which is cited Mulvane v. Rude, 146 Ind. 482, 483, 45 N.E. 659, and others.

Where the words of the will were, "But should she die without issue and leave any property at her death given by this will," then over, it was held that an implied power was given and that the devisee acquired a fee in the property. Galloway v. Durham (1904) 118 Ky. 544, 81 S.W. 659, 111 Am. St. Rep. 300, cited in notes, v. 30 A. & E. Encyclopedia of Law, p. 737.

An inspection of the entire will shows the intention of the testator to make an equal division among his children of all his property, devising his lands to them in fee, and in only one other instance does he attempt to suggest what shall be done with the land after the death of the devisee, and this suggestion is likewise based on her ownership thereof at her death; but in both these instances the devise is in fee, unconditional.

"In construing a will, where there is doubt or ambiguity, the true intent and meaning of the testator should be gathered from the entire instrument, in accordance with the rules of law established for the purpose. * * * The first taker in a will is presumably the favorite of the testator, and in doubtful cases the gift is to be construed so as to make it as effectual as to him as the language of the will,...