Smith v. Mears

• Court: North Carolina Supreme Court
• Citation: Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659 (N.C. 1940)
• Decision Date: 25 September 1940
• Docket Number: 98.
• Parties: SMITH v. MEARS et al.

10 S.E.2d 659

218 N.C. 193

SMITH v. MEARS et al.

No. 98.

Supreme Court of North Carolina

September 25, 1940

Proceeding to determine rights of legatees or beneficiaries under a will.

On the hearing, it was agreed by all the parties that a jury trial should be waived, and that the whole matter should be submitted to the court for final determination, both as to the law and the facts.

In summary, the findings and conclusions essential to the questions presented by the appeal follow:

1. That G. Augustus Mears, late of Buncombe County, died testate on 21 January, 1913, leaving him surviving an only daughter Mrs. Ella Mears Webster, and five sons, Frank A. Mears, S Parley Mears, Clarence L. Mears, Jay J. Mears and Robert L Mears.

(a) In the second paragraph of the will of G. Augustus Mears published on 21 February, 1912, the testator's "Home Place" is devised to his daughter, Ella Mears Webster, "during her natural life, and at her death to the children of her body absolutely in fee forever".

(b) In the fourth paragraph, the testator's "Daylight Store", situate on Main Street in the City of Asheville, is devised to four of his sons, S. Parley, Clarence L., Clyde E., and Jay J. Mears, "for and during their natural life".

(c) In the fifth paragraph the testator's "Slayden and Fakes Wholesale Building", situate on Lexington Avenue, is devised one-half interest to his son, Robert L. Mears, "for and during his natural life", and the remaining undivided one-half interest is devised to his sons, S. Parley, Jay J., Clarence L., and Clyde E. Mears, "during their natural life".

(d) In the eighth paragraph, an undivided one-fourth interest in the testator's "Haywood Street Store" is devised to his son, Robert L. Mears, "to be his absolutely forever", provided he "shall marry a respectable and worthwhile woman".

(e) In the ninth paragraph, the remaining three-fourths interest in the testator's "Haywood Street Store" is devised to his sons, S. Parley, Clarence L., Jay J. and Clyde E. Mears, "for and during their natural life, to share and share alike".

(f) In the eleventh paragraph, it is provided: "That upon the death of my sons to whom I have given and devised for life the property (Daylight Store *** the Slayden and Fakes Wholesale House *** and the three-fourths interest in the property situate on Haywood St.) *** shall die without issue, then in that event I give and devise to my grandchildren, that is, the children of all my sons and daughter, the remainder of said estate in fee as per stirpes and not per capita".

(g) In a codicil published 2 June, 1912, the testator ratified and confirmed his will except as changed thereby, and among other changes, provided:

(h) "I further modify my last will and testament in this respect. That is, each of my said sons may or shall have full power to sell or dispose of any or all of the property in this will devised to them in fee and receive the proceeds thereof as to them seems best or proper. My daughter, Mrs. Webster, shall have full power to sell or dispose of her interest in all the property devised to her under this will in fee".

(i) "I change my will so that Robert L. Mears shall have one-half interest in the store at the River in place of a fourth as is set out in the eighth paragraph herein, and the remainder to the other parties".

2. That Clyde E. Mears, son of the testator, died in the interim between the execution of the original will and the codicil thereto, leaving him surviving a daughter, Eugenia Mears Belcher, who is substituted in his stead by the codicil.

3. That Ella Mears Webster had two daughters, Martha Webster McLeod and Mary Webster Smith. The latter died in 1936, leaving her surviving an infant daughter and namesake, Mary Webster Smith, who is the plaintiff herein.

4. That on 14 October, 1936, Ella Mears Webster executed a deed for the "Home Place" mentioned in item two of her father's will, to her daughter, Martha Webster McLeod. The deed recites a consideration of $10 and other good and valuable considerations. Also in her will, the Home Place is devised to her daughter Martha. She died 18 January, 1937.

5. That the value of the Home Place on 14 October, 1936, was $10,000.

6. That Robert L. Mears has met the condition named in the eighth paragraph of his father's will and his title to the property devised therein has become absolute.

7. That Clarence L. Mears died 19 March, 1914, without issue, he never having married, and by his will devised all of his real estate to his two brothers, Robert L. and Jay J. Mears.

8. That Jay J. Mears died 1 April, 1928, without issue, he never having married, and Robert L. Mears claims an additional interest in his father's estate by virtue of the will of his brother, Jay J. Mears.

Upon the foregoing, and other findings (not here set out because unnecessary to questions presented by the appeal), his Honor concluded, among other things, (1) that Martha Webster McLeod took a good and indefeasible title to the Home Place, under the deed from her mother, impressed, however, with a trust in favor of the plaintiff for one-half its value, and (2) that Robert L. Mears acquired no additional interest in his father's estate under and by virtue of the wills of his brothers, Clarence L. Mears and Jay J. Mears.

From these rulings, the defendants Martha Webster McLeod and Robert L. Mears appeal, assigning errors.

Jordan & Horner, of Asheville, for plaintiff, appellee.

Sanford W. Brown and J. W. Haynes, both of Asheville, for Martha Webster McLeod, defendant, appellant.

R. M. Wells, George M. Pritchard, and M. A. James, all of Asheville, for defendant R. L. Mears, appellant.

Harkins, Van Winkle & Walton, of Asheville, for defendants George A. Mears and Elizabeth Mears Moore, appellees.

Johnson & Uzzell, of Asheville, for defendant Eugenia Mears Belcher, appellee.

STACY Chief Justice.

Does the annexation, by codicil, of the power of sale or disposition, to the life estates given in the original will, convert them into fee-simple estates? The trial court answered in the negative, and under the authorities to be cited, we agree.

In limine, it may be well to recall that the guiding star in the interpretation of wills, to which all rules must bend, unless contrary to some principle of law or public policy, is the intent of the testator, and this is to be ascertained from the language used by him, "taking it by its four corners", and considering for the purpose the will and any codicil or codicils as constituting one instrument. Richardson v. Cheek, 212 N.C. 510, 193 S.E. 705; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Jolley v. Humphries, 204 N.C. 672, 169 S.E. 417; Ellington v. Trust Co., 196 N.C. 755, 147 S.E. 286; Satterwaite v. Wilkinson, 173 N.C. 38, 91 S.E. 599.

A codicil is a supplement to a will, annexed for the purpose of expressing the testator's afterthought or amended intention. Green v. Lane, 45 N.C. 102, 113. It is to be construed with the will itself, and the two are to be considered as constituting a single instrument. Darden v. Matthews, 173 N.C. 186, 91 S.E. 835.

So looking at the will before us, we find that in the codicil the testator first ratifies and confirms his "last will and testament, dated Feb. 21st, 1912", except as "changed hereby", and then he proceeds to "modify" it in certain respects. It results, therefore, that the devises in question to the sons are to them "during their natural life", with "full power to sell or dispose of any or all of the property in this will devised to them" in fee, and the devise to the daughter is to her "during her natural life", with "full power to sell or dispose of her interest in all the property devised to her under this will" in fee.

It has been said in a number of cases that a devise to a person generally or indefinitely, with a power of disposition or appointment, carries the fee. Roane v. Robinson, 189 N.C. 628, 127 S.E. 626; Hoskins v. May, 213 N.C. 795, 197 S.E. 689; Fletcher v. Bray, 201 N.C. 763, 161 S.E. 383; Bass v. Bass, 78 N.C. 374. The rule is otherwise, however, when such power is annexed to a life estate. Patrick v. Morehead, 85 N.C. 62, 65, 39 Am.Rep. 684. In that case the express limitation for life will control the operation of the power and prevent it from enlarging the estate into a fee. Darden v. Matthews, supra.

In Chewning v. Mason, 158 N.C. 578, 74 S.E. 357, 358 39 L.R.A.,N.S., 805; the pertinent authorities are reviewed in a careful opinion by Walker, J., and the following conclusion reached: "We may therefore take...