Herring v. Williams

• Decision Date: 19 October 1910
• Parties: HERRING et ux. v. WILLIAMS et al.
• Court: North Carolina Supreme Court

69 S.E. 140

153 N.C. 231

HERRING et ux. v. WILLIAMS et al.

Supreme Court of North Carolina

October 19, 1910

Appeal from Superior Court, Nash County; Guion, Judge.

Action by E. T. Herring and wife against Carrie Williams and another. Judgment for plaintiffs, and defendants appeal. Reversed.

Testator gave his entire estate, real and personal, to his wife for life, and the property, "or as much thereof as may be in her possession at the time of her death," was given in fee to an adopted daughter. Held, that the will conferred upon the life tenant power to dispose of the property during her life; that such power was not limited to any specific purpose; that her deed conveyed the fee in the absence of restrictive words; and that the devisee of the remainder would take only such part of the real estate as was undisposed of by the life tenant, precluding any right of action for waste against the life tenant and her grantee in fee.

In August, 1902, William R. Williams died, resident in Nash county, seised of a tract of land containing about 100 acres of two town lots in the city of Rocky Mount, and of a small quantity of personal property. He left surviving him his widow, the defendant Carrie Williams. He had no living children born to him and his wife, but when the feme plaintiff, Bettie Herring, whose maiden name was Bettie Melton, was only 10 weeks old, he adopted her, and took her into his home as his foster child. On March 11, 1902, four months prior to his death, the said William R. Williams had his neighbor J. B. Stokes to write his will for him, and in that will he disposes of and devises his property as follows to wit: "I give and bequeath unto my beloved wife Carrie Williams, all my property--real, personal and mixed--of what nature or kind soever, and wherever the same may be situate at the time of my death, to have to hold during the term of her natural life; and at the death of my wife, the said Carrie Williams, the said property or as much thereof as may be in her possession at the time of her death is to go to Bettie Melton, her heirs and assigns, forever." Upon the death of the testator, the widow and life tenant, Carrie Williams, went into the possession of all the testator's land and personalty. On February 23, 1903, she conveyed the real estate in fee to her brother-in-law, the defendant Green, in exchange for land conveyed by him to her. Green, having thus gotten possession of the land, proceeded to cut from the 100-acre tract, being the only timbered land of which the testator died seised, all the standing timber growing thereon. It is admitted by the defendants that no part of the buildings and improvements which were subsequently put on this tract of land by Green were constructed from the timber which he cut and removed. It is further admitted that he cut the timber "solely for the purpose of sale and profit, and not for the cultivation of the land, or to increase the amount of cleared land for the purposes of cultivation." He received for the standing timber on March 5, 1905, the net sum of $458.

The plaintiff demanded judgment for the waste committed and the forfeiture of the life estate. The contentions of the defendants were that Carrie Williams, the wife of the testator, under the provision of this will above quoted, had full right and power to dispose of any and all the real estate devised by her husband, and that the plaintiff Bettie was entitled to only such of his property as remained undisposed of at his wife's death, and therefore the plaintiff had no cause of action against them. His honor held against this contention of the defendants, and adjudged that, "under the will of the testator, the defendant, Carrie Williams, became and was entitled to an estate for life, and that the plaintiff Bettie is the owner of a vested remainder in fee in all the lands of which the testator died seised, after the death of his wife and the falling in of the life estate," and that the deeds of Mrs. Williams to Green conveyed only the life estate of Mrs. Williams. The defendant Green also contended that he could offset the waste charged by showing the value to the inheritance of the buildings erected by him on the land. His honor held against the defendants on this contention. The jury having found that there was waste and assessed the damages at $458, his honor rendered judgment declaring the estate of plaintiff Mrs. Herring under the will of Mr. Williams to be in fee for the amount of damages found by the jury, and further adjudging that, if the money judgment was not paid by a day named, the estate of the defendants in the wasted land should be forfeit to the plaintiff. The defendants moved for judgment as of nonsuit, but this was overruled. The defendants appealed.

T. T. Thorne and J. C. L. Harris, for appellants.

Bunn & Spruill, for appellees.

MANNING J.

The primary purposes of the courts when a will is presented for construction is to ascertain the intention of the testator from the language used by him. In ascertaining such intention, the entire will must be considered, and it is competent to consider the condition of the testator's family, how he was circumstanced, and his relationship to the objects of his testamentary disposition, so as nearly as possible to get his view point at the time the will is executed. In the present case the testator's family was composed of his wife, the defendant Carrie Williams, and his foster daughter, the plaintiff Mrs. Bettie Herring. He had no children of his own, and he and his wife had raised the feme plaintiff from an infant 10 weeks old. She was living with the testator and his wife at the time of his death. The testator's estate consisted of a few articles of personal property of small value, a tract of land of about 100 acres of which the arable land was sufficient for a one-horse farm. The buildings and the arable land were only in fair condition, and the remainder of the land was timber land, also a house and lot in the town of Rocky Mount, and an unimproved lot in the same town. The tract of farm land was worth at his death about $1,250 or $1,500. The evidence does not disclose the value of the house and lot or the unimproved lot, but the inference from the evidence is that they were not of large value, probably not exceeding $1,000 or $1,200. At the time of his death, the testator was employed as an overseer of another farm, and his own farm was rented, and his income from his work must have constituted the principal source of support for his wife and foster child. The will itself furnishes sufficient proof of the affection of the testator for his wife, and we will assume that he entertained feelings of affection for his foster daughter. It is clear from the language of the will that a life estate is vested in the wife, and a remainder in fee in the feme plaintiff. It is equally clear that the life estate vested in the wife covered the testator's entire estate--"all my property, real, personal and mixed, of what nature or kind soever, and wheresoever the same shall be at the time of my death." But the remainder in fee to his foster daughter, the feme plaintiff, is limited to the "said property or as much thereof as may be in her (his wife's) possession at the time of her death." So the precise question is: Do the words "as much thereof as may be in her possession at the time of her death" annex as appurtenant to the life estate a power of disposition in the life tenant? If the power of disposition is appurtenant to, or incident to, the life estate, then under the decision of this court in Parks v. Robinson, 138 N.C. 269, 50 S.E. 649, the life tenant could convey in fee in the exercise of that power. In that case, Connor, J., speaking for this court, said: "To restrict the power of disposal of her life estate would be to nullify its effect. She had such power incident to her life estate. To confine the power of disposal to such life estate would do violence to the rule of construction that every word used by the testator should be given force." The language of the will, construed in that case, was as follows: "I give *** to my beloved wife, Ann...