{
  "id": 11271404,
  "name": "ELIZABETH G. GRIFFIN v. C. E. and T. A. COMMANDER",
  "name_abbreviation": "Griffin v. Commander",
  "decision_date": "1913-09-08",
  "docket_number": "",
  "first_page": "230",
  "last_page": "233",
  "citations": [
    {
      "type": "official",
      "cite": "163 N.C. 230"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "113 N. C., 337",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8653118
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/113/0337-01"
      ]
    },
    {
      "cite": "85 N. C., 62",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11276901
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/85/0062-01"
      ]
    },
    {
      "cite": "78 N. C., 374",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8693612
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/78/0374-01"
      ]
    },
    {
      "cite": "138 N. C., 269",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11269201
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nc/138/0269-01"
      ]
    },
    {
      "cite": "27 N. C., 430",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11275275
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/27/0430-01"
      ]
    },
    {
      "cite": "89 N. C., 437",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8683350
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/89/0437-01"
      ]
    },
    {
      "cite": "35 N. J. L., 77",
      "category": "reporters:state",
      "reporter": "N.J.L.",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 371,
    "char_count": 6681,
    "ocr_confidence": 0.451,
    "pagerank": {
      "raw": 1.6948345392970647e-07,
      "percentile": 0.6998415737751505
    },
    "sha256": "49f8736432635f0b4ed21d90824e34d0897f29469afeba6fc8901e5074f87ed7",
    "simhash": "1:1106a74d154e8557",
    "word_count": 1222
  },
  "last_updated": "2023-07-14T20:17:53.185686+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ELIZABETH G. GRIFFIN v. C. E. and T. A. COMMANDER."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nThis is a controversy, submitted without action, to determine whether or not the plaintiff can make a good and valid title to the defendants for certain real estate in Elizabeth City which she has contracted to convey to them.\nW. W. Griffin died 1 October, 1897, owning said realty in fee and leaving his widow, who is'the plaintiff, two children, N. R. Griffin and Blanche Temple, each of whom had living children, and seven grandchildren, who were the children of his deceased son, \"William J. Griffin. In March, 1901, said widow and her son, N. R. Griffin, instituted a special proceeding against Blanche Temple and tb'e seven children of W. J. Griffin, deceased, for.sale of the premises for partition. Such sale was made and confirmed and a deed was made to the plaintiff as purchaser. In that proceeding the children of N. E. Griffin and Blanche Temple were not made parties, and this is now urged as a defect.\nThe effect of such partition proceedings need not be discussed, for we are of opinion that under the will of W. W. Griffin, the plaintiff took a fee simple in the locus in quo and has a right to convey a good and indefeasible title to the defendants, to whom she has contracted to sell the same.\nW. W. Griffin by his will devised and bequeathed to his widow, the plaintiff, \u201cElizabeth G. Griffin, all the remainder of my estate, real and personal, with power to give and devise the same after her death, to our beloved children and grandchildren ; that inasmuch as they are and should be our lawful heirs and that they are equally our own and well beloved by each of us, as their joint parents, she has the same right of distribution of our estate as I have, knowing no partiality nor discrimination in the same.\u201d\nThe rule governing this case is clearly stated in Borden v. Downey, 35 N. J. L., 77: \u201cWhere an estate for life is expressly given and a power of disposition is annexed to it, in such case the fee does not pass under such devise, but the naked power to dispose of the fee. It is otherwise in case there is a gift generally of the estate, with a power of disposition annexed. In this latter case the property itself is transferred.\nIn the will of W., W. Griffin there is no limitation for life, and the words annexed do not restrict, it to a life estate, -but are merely an expression of the opinion of the testator that his wife after his death should have complete right of distribution of said estate as fully as he had himself, and would exercise it impartially.\nIn McKrow v. Painter, 89 N. C., 437, the testator gave the property to his wife, \u201cif she remains a widow; and if she marries, she is only to have a child\u2019s part . . . and I authorize my wife at her death to divide this property among our children as sb\u00a9 sees proper.\u201d Tbe Court beld that under the act of 1784, uow Revisal, 3138, this language vested the absolute title in the wife of the testator, distinguishing Alexander v. Cunningham, 27 N. C., 430.\nIn Parks v. Robinson, 138 N. C., 269, it is held, citing 2 Un-derhill on Wills, sec. 686, that \u201cA devise to a person for life only, with power of disposition, gives the devisee an estate for life with power to appoint in fee simple.\u201d\nIn Jackson v. Robins, 16 Johns. (N. Y.), 588, it is held to be settled law that \u201cWhere an estate is given to a person generally, or indefinitely, with power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only by certain and express words \u2018and annexes thereto a power of disposal; in that special and particular ease the devisee will not take the estate in fee.\u201d This case is cited and approved in Bass v. Bass, 78 N. C., 374, where it was held that a devise to the testator\u2019s wife of his property, \u201cto be disposed of by will, or in any manner she may deem best,\u201d did not impose a limitation upon the gift, and\u00b0that the words of appointment cannot be held to have such effect; and further, that where an estate is given to a person generally, with the power of disposal, it is in fee unless the testator gives to the first taker an estate for life only and annexes thereto a power to dispose of the reversion, citing 2 Jarman Wills, 171, note 2; Kent. Com., 349; Sugden on Powers, 96.\nJackson v. Robins, supra, is also cited with approval in Patrick v. Morehead, 85 N. C., 62, where it is laid down: \u201cIt has been settled upon unquestionable authority, that if an estate be given to a person generally, with the power of disposition or appointment, it carries the fee; but if it be given to one for life only, and there is annexed to it such a power, it does not enlarge the estate, but he has only an estate for life.\u201d Bass v. Bass and Patrick v. Morehead, both supra, are cited with approval in Long v. Waldraven, 113 N. C., 337.\nThe test in cases of this kind is whether the testator expressly limits the devise of the first taker to a life estate by specific language. No such specific language is used in this case. The plaintiff took a fee simple, absolute, and tbe phrase, \u201cwith tbe power to devise after ber death to our children and grandchildren,\u201d does not limit the prior fee-simple estate devised to her. Such words were mere surplusage, because the right to devise is incident to her fee simple. Indeed, the words, \u201cShe has the same right of distribution of our savings as I have,\u201d intimate a clear intention to devise the fee simple to her. In effect, he said that the property having been acquired by the toil of both of them, he intended that his wife after his death should have the same power of disposing and controlling such property and as fully as he had himself.\nThe judgment of the court below to the contrary of this opinion is\nReversed.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Ward \u2022& Thompson for plaintiff.",
      "J. C. Brooks for defendants."
    ],
    "corrections": "",
    "head_matter": "ELIZABETH G. GRIFFIN v. C. E. and T. A. COMMANDER.\n(Filed 8 September, 1913.)\nWills \u2014 Devises in Fee \u2014 Power of Disposition \u2014 Precatory Words.\nA devise to G., tbe widow of tbe testator, \u201cwith power to give and devise\u201d tbe estate to tbeir children and grandchildren, with tbe expression \u201cthat they are equally our own and well beloved by each of us, and she has tbe same right of distribution of our estate \"as I have, knowing no partiality or discrimination in tbe same\u201d: Held, G. took tbe estate in fee simple, there being no specific language limiting a life estate to her with power of disposition, tbe words annexed not restricting the estate devised, but being merely an expression of tbe testator\u2019s opinion that bis wife bad the same right as be of distribution and would impartially malee it:\nAppeal by plaintiff from Bragcm, J., at August Term, 1913, of PasquotaNK.\nWard \u2022& Thompson for plaintiff.\nJ. C. Brooks for defendants."
  },
  "file_name": "0230-01",
  "first_page_order": 276,
  "last_page_order": 279
}