Darden v. Matthews

• Decision Date: 21 March 1917
• Docket Number: (No. 223.)
• Citation: 91 S.E. 835
• Court: North Carolina Supreme Court
• Parties: DARDEN v. MATTHEWS.

91 S.E. 835

(173 N.C. 186)

DARDEN

v.MATTHEWS.

(No. 223.)

Supreme Court of North Carolina.

March 21, 1917.

Appeal from Superior Court, Sampson County; Lyon, Judge.

Controversy submitted without an action by J. T. Darden against D. E. Matthews. From an adverse judgment, plaintiff appeals. Reversed.

This is a controversy submitted without action.

Mary J. Darden, who was the owner of the land in controversy, died, without issue, leaving a will, which has been duly probated and recorded, the material parts of which are as follows:

"Second. I give and devise and bequeath to my beloved husband, J. T. Darden, all of my real and personal property, of every kind and description, to have, possess and use during his natural life, and upon his death, all of said real and personal property shall go to my husband's brother, J. M. Darden, if he shall then be living, and upon his death, to my grandchild, Thomas Carr Hollingsworth, in fee simple, forever; and if my husband, J. T. Darden, shall survive his brother, J. M. Darden, then upon the death of my husband, J. T. Darden, all of my real and personal property of every description, as aforesaid, shall go to and vest in my grandson, Thomas Carr Hollingsworth; and if my said grandson, Thomas Carr Hollingsworth, shall die without any issue of his body, said lands and property shall go to and vest in the children of Dr. J. H. Darden, namely, Henry Darden, Jimmie Darden, and Mary Bell, to be divided equally between them."

After the execution of said will, she added a codicil thereto, which has been duly pro bated and recorded as a part of the will, in which there is the following provision:

"First. I give and confer upon my said husband, J. T. Darden, full power and authority to sell and convey any part of the foregoing property, and to make title to the purchaser after my death."

The said J. T. Darden has agreed to sell to the defendant all of the lands and premises belonging to the said Margaret 3. Darden, situate in Sampson county, and set out, in said will, for the sum of $5,200, and the defendant has agreed to purchase said premises and pay for the same, at the price above named, provided the plaintiff has authority, under said will, to convey to him a good and indefeasible title to said lands.

In accordance with the contract and agreement referred to, the plaintiff has made, executed, and tendered to the defendant a deed to said lands in fee simple, with full covenants of warranty and seisin, and has demanded of the defendant the purchase price agreed upon. The defendant has refused to accept said deed, or to pay any part of the purchase price agreed upon, until said title shall have been passed upon by the courts; the defendant claiming that under the last will and testament of Margaret J. Darden, hereinbefore referred to, the plaintiff is without power to convey said lands to him in fee simple, as he has attempted to do in the deed above referred to. Judgment was rendered against the plaintiff, adjudging that he has no power to sell and convey said lands, and he excepted and appealed.

Butler & Herring, of Clinton, for appellant.

ALLEN, J. [1, 2] A codicil is a part of a will, but with the peculiar function annexed of expressing the testator's afterthought or amended intention. It should be construed with the will itself, and the two should be dealt with as one instrument (Shouler, Wills & Ex. vol. 1, § 487; Green v. Lane, 45 N. C. 113), and, when so considered, the land in controversy is devised to the plaintiff "during his natural life, " with "full power and authority to sell and convey" it.

Language, annexed to a life estate, much less direct and explicit than that contained in the codicil, has been held to confer a general power of disposition. In Parks v. Robinson, 138 N. C. 269, 50 S. E. 649, the devise was to the wife during her natural life and "at her disposal"; in Chewning v....