Troy v. Troy

• Decision Date: 31 December 1864
• Court: North Carolina Supreme Court
• Parties: MARY TROY, Executrix of ROBERT E. TROY ET ALEXANDER TROY, an infant, who sues by his Guardian, MARY TROY, v. ALEXANDER TROY.

60 N.C. 624

MARY TROY, Executrix of ROBERT E. TROY ET ALEXANDER TROY, an infant, who sues by his Guardian, MARY TROY,

v.ALEXANDER TROY.

Supreme Court of North Carolina.

December Term, 1864.

A gift by will to A for life, remainder to B in fee, with a power to A to sell all or so much of the property as, in her judgment, may be necessary, vests in A an estate for her life, with a power of sale appurtenant to her life estate.

And the expression by the testator, in a subsequent part of his will, of a doubt, whether the power of sale would not make A the absolute owner of the whole estate, and a direction that in case such should be the construction in law, that C should have the legal estate in fee in the property, in trust, &c., do not convey to C any estate or interest in the property.

The will declares the expense of the education of his son to be a charge on all his property. A holds the proceeds of sales, made under the power, in must to pay debts, for her own support, and for the support and education of B.

This cause was removed from the Court of Equity for Columbus County, to this Court for trial.

The bill states that in the year 1862, Robert E. Troy, the husband of the feme plaintiff, and the father of the other plaintiff died, leaving a last will and testament, which has been proved; of which the plaintiff Mary is the executrix. After stating, in substance, the contents of the will, and that a sale of some of the property is necessary to pay the debts of the testator, the bill charges that the defendant sets up a claim to the legal estate in the testator's property, and denies the right of the plaintiff, Mary, to sell; and so obstructs the exercise of the power given to her. The prayer is for a declaration of the rights of the parties, and that the defendant be restrained from setting up any claim to any of the property, or that he may be declared to be a trustee according to the claim he has made.

The material parts of the will (which is made a part of the bill) are as follows:

“It is my will and desire, that all my property and estate of every kind and description, shall belong to my beloved wife Mary during the term of her natural life, and at her death, to my son Alexander. Should it be necessary, however, in the judgment of my wife, that any of the property, real or personal, should be sold, then I authorize and empower my said wife to sell all, or such part thereof, as she may think proper, either at public or private sale, for cash or otherwise, and to convey the purchaser an absolute title in fee simple. But if my said wife should marry, this power of disposing of my property shall cease and determine.”

“Item. As I have some doubts whether the above disposition of my property, would not be construed in law to vest in my wife the entire estate and title, notwithstanding it is expressly limited to her for life; I therefore desire, in case the intervention of a trustee be necessary in law to carry into effect the disposition which I have made of my property, that the whole of my said property shall be held by my brother Alexander...