Hardee v. Rivers
| Decision Date | 15 October 1947 |
| Docket Number | 313 |
| Citation | 44 S.E.2d 476,228 N.C. 66 |
| Parties | HARDEE v. RIVERS. |
| Court | North Carolina Supreme Court |
On July 29, 1932, S. B. Hardee died testate, seized and possessed of real and personal property including the locus. He devised all his property, real and personal to his wife for and during her life with the remainder over to two named charitable institutions 'subject to the following proviso:
'It is my will and desire that my said wife, Sophia Hardee, shall have the use and control of all my property so long as she shall live, and in the event that the income therefrom is not sufficient for the proper support and maintenance of my said wife then she shall have the power and authority, in her discretion, at any time she deems necessary, to sell any or all of my real estate at either public or private sale and convey title in fee simple to purchaser, and use the proceeds thereof for her own personal necessary use and benefit, and in such event she shall not be required to have the consent or approval of the said Trustees of either of the Odd Fellows Orphan Home at Goldsboro or the Free Will Baptist Orphan Home at Middlesex for such sale, and in case of sale shall not be required to give bond to account for the proceeds thereof, it being my desire and purpose that my wife shall be amply provided for during her lifetime, and if necessary she is authorized to use all of my estate for her own personal use and benefit, so long as she may live, but any part of my estate not used by her during her lifetime shall at her death, as above provided, go one-half to the Trustees of the Odd Fellows Orphan Home at Goldsboro, N. C and the other half to the Trustees of the Free Will Baptist Orphan Home in Middlesex, N. C., to be applied and added to the endowment funds of said institutions.'
Plaintiff contracted to sell and defendant contracted to purchase the tract of land described in the record which is a part of the property devised by said will. Pursuant to said contract plaintiff has tendered defendant a deed which recites the power contained in said will and conveys or purports to convey said premises to defendant in fee. While defendant stands ready to accept a conveyance of an indefeasible fee in said property and to pay therefor, he declines to accept the deed tendered for that plaintiff is seized and possessed of a life estate only in said land and is without power under the terms of said will to convey an indefeasible fee.
It is admitted in this connection that the income from the estate is not sufficient for the proper support and maintenance of plaintiff, and it has become necessary for her in her discretion to sell some part thereof.
The parties submitted this controversy to the end the Court may decide whether the tendered deed conveys an indefeasible fee and defendant is under the legal duty to accept same and pay the agreed purchase price therefor.
The court below being of the opinion that the will of S. B Hardee vests plaintiff with full power and authority 'in her discretion, at any time she deems necessary, to sell any or all of said real estate at either public or private sale and convey title in fee simple to the purchaser' decreed specific performance of the contract. Defendant excepted and appealed.
J. W. H. Roberts, of Greenville, for plaintiff appellee.
Albion Dunn, of Greenville, for defendant appellant.
A devise generally or indefinitely with power of disposition creates a fee. G.S. s 31-38; Patrick v. Morehead, 85 N.C. 62, 39 Am.Rep. 684; Herring v Williams, 158 N.C. 1, 73 S.E. 218; Darden v....
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