Chewning v. Eason

• Decision Date: 03 April 1912
• Citation: 74 S.E. 357,158 N.C. 578
• Parties: CHEWNING et al. v. EASON et al.
• Court: North Carolina Supreme Court

74 S.E. 357

158 N.C. 578

CHEWNING et al. v. EASON et al.

Supreme Court of North Carolina

April 3, 1912

Appeal from Superior Court, Anson County; Whedbee, Judge.

Action by E. H. Chewning and others against F. C. Eason and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

A devise to testator's wife during her natural life, and then to dispose of as she thought proper, passes only a life estate with a mere power of disposition.

One given estate for life with power of disposition does not have fee.

Gulledge & Boggan, F. J. Coxe, and W. E. Brock, for appellants.

Robinson & Caudle, for appellees.

WALKER J.

This is a controversy between the parties to this action, arising out of the following facts: Plaintiffs, who are the heirs of Thomas Chewning, claim that they are the owners of the tract of land, which is the subject of the controversy; and defendants, who are the heirs of Martha Chewning, dispute this claim and assert ownership in themselves. The land was owned by Thomas Chewning, who, by his will, devised it to his wife, Martha Chewning, in these words: "I give and bequeath (after all my just debts shall have been paid) all of my real and personal property, together with all debts owing my estate, to my wife, Martha Chewning, during her natural life, and then to dispose of as she sees proper." If, under this clause of the will, Martha Chewning acquired a life estate only, with power of disposal the plaintiffs are entitled to the land, as she failed to exercise the power; but if the grant of the power enlarged the estate for life, which is expressly given, into an estate in fee, then the defendants are the owners of the land. The court below was of opinion with the plaintiffs, and rendered judgment accordingly, from which the defendants appealed.

There is a marked distinction between property and power. The estate devised to Mrs. Chewning is property, the power of disposal, a mere authority which she could exercise or not in her discretion. She had a general power annexed to the life estate, which she derived from the testator under the will. If she had exercised the power by selling the land, the title of the purchasers would have been derived, not from her, who merely executed the power, but from the testator or the donor of the power. "The appointer is merely an instrument; the appointee is in by the original deed. The appointee takes in the same manner as if his name had been inserted in the power, or as if the power and instrument executing the power had been expressed in that giving the power. He does not take from the donee, as his assignee." 2 Wash. R. P. 320; 1 Sugden on Powers (Ed 1856) 242; 2 Sug. Pow. 22; Doolittle v. Lewis, 7 Johns Ch. (N. Y.) 45, 11 Am. Dec. 389. "In the execution of a power, there is no contract between the donee of the power and the appointee. The donee is the mere instrument by which the estate is passed from the donor to the appointee, and, when the appointment is made, the appointee at once takes the estate from the donor as if it had been conveyed directly to him." Norfleet v. Hawkins, 93 N.C. 392. It does not follow, because she could sell and convey the land under the power, that she thereby became the owner in fee. We must ascertain the intention of the testator, for that is the prevailing consideration and the supreme rule of interpretation, keeping in mind, of course, the rules of construction as our guide, and looking at the will in its entirety. If the testator, in this case, intended to devise the fee to his wife, it is strange that he should have expressly and definitely limited the estate to one for her life. Naturally, he would have given it to her without restriction. The reasonable meaning of the clause is that she should have and enjoy the property for the term of her life, with a general power of appointment or disposal of the reversion by her will, or, at least, subject to her life estate, if she close to exercise it, and the great weight of authority sustains this construction. The doctrine was clearly expressed by Chancellor Kent: "If an estate be given to a person generally or indefinitely, with a power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee." 4 Kent, Com. 520, 521; Jackson v. Robins, 16 Johns. (N. Y.) 537. It has been held that a devise to A., with power to dispose at pleasure, is considered as conveying property, not as conferring power; for the words of power will not be permitted to take away what, without them, is expressly given. 2 Prest. on Est. 81, 82; 13 Ves. 453. But where there is an express and inconsistent estate for life given, the construction of the instrument is altogether different; for the express estate for life negatives the intention to give the absolute property, and converts these words into words of mere power, which, standing alone, would have been construed to convey an interest. This appears to be very clearly established by the cases which further lay it down, that where an interest, and not a mere power, is conferred, the absolute property is vested, without any act on the part of the legatee; but, where a power only is given, the power must be executed, or it will fail. We may therefore take the rule to be settled that where lands are devised to one generally, and to be at his disposal, this is a fee...