Hicks v. Ward Et Ux

• Decision Date: 08 December 1890
• Citation: 107 N.C. 392,12 S.E. 318
• Court: North Carolina Supreme Court
• Parties: Hicks et al. v. Ward et ux.

107 N.C. 392

12 S.E. 318

Hicks et al.

v.Ward et ux.

Supreme Court of North Carolina.

Dec. 8, 1890.

Testamentary Powers—Execution.

1. A devise to testator's son "in trust for such person or persons, and use or uses, as he shall by deed or will appoint, and, until and in default of such appointment, in trust for the sole and separate use of" devisee's wife, for life, with remainder over to her children, confers upon the devisee a general power of appointment, and he may execute a valid mortgage on the land devised.

2. Where such mortgage provides that, in case of a sale thereunder, any overplus remaining after paying the debt secured thereby shall be paid to the devisee, his heirs, representatives, or assigns, it is & total appointment, and defeats the trusts declared in the will.

Appeal from superior court, Granville county; MacRae, Judge.

This is a controversy, without action, submitted upon facts agreed between the parties, the substance of which are as follows: In 1863, Edward H. Hicks was appointed guardian of the infant children of his brother, Thomas C. Hicks, then lately deceased, and executed his bond as such guardian in the usual form, and in the penal sum of $40,000, with good and sufficient sureties thereto. In or about the month of February, 1864, Thomas I. Hicks, who was the father of the said Edward H. Hicks and Thomas C. Hicks, died, having first made and published his last will and testament, which was duly proved. The said Edward H. Hicks, who was named in said will as the executor thereof, was duly qualified as such. Testator, in and by his said will, devised and bequeathed the whole of his estate, real and personal, to his wife, for the term of her life, and, at her death, he devised and bequeathed his real estate, and such part of his personal estate as had not perished, or been consumed in the use, during the life of his wife, as follows: (1) One-fourth part or share thereof to the children of his deceased son, Thomas C. Hicks, to-wit, Amanda J. Hicks, Thomas C. Hicks, Anna Hicks, and Sophia Hicks, to be divided between them in manner as set forth in said will, after charging them with certain advancements, etc. (2) "One-fourth part or share thereof to my son Edward H. Hicks, in trust for such person or persons, and use or uses, as he shall by deed or will appoint, and, until and in default of such appointment, in trust for the sole, separate, and exclusive use and benefit oi my daughter-in-law Harriet, wife of said Edward H. Hicks, during her life, and, at her death, to be equally divided between the children of my said son Edward by the said Harriet then living, and the then living children of such of them as shall have died leaving children per stirpes." The said testator also charged his son Edward H. Hicks with certain advancements made to him. (3) One-fourth part or share thereof to his daughter Mrs. Angelina Pleasant, charging her also with certain advancements. (4) One-fourth part thereof to his grandchildren, Sophia Skinner, Sallie Skinner, and William Skinner, the children of his deceased daughter, Mrs. Caroline Skinner, also charging them with certain advancements, etc. Testator's widow died in November, 1866, and thereupon the said Edward H. Hicks, as executor of Thomas I. Hicks, resumed possession of the personal estate of said testator bequeathed to her for her life, as aforesaid, or so much thereof as remained, to be divided at her death in manner as by the said will directed. After the death of testator's widow, the said Edward H. Hicks procured a bill to be filed against him as executor, and in his own right as defendant, in the names of William S. Skinner and the other persons, or their representatives, interested in the estate of Thomas I. Hicks, and entitled to a division of the same under his will, at the death of his widow, as plaintiffs, for an account and settlement of the personal estate, and a sale of the real estate of said testator, and a division of the personal estate, or the proceeds thereof, and of the proceeds of the real estate, among the parties in interest, according to the directions and provisions of the will. A sale of the real estate was ordered by the court, and, on October 22, 1867, John W. Hays,...