#### JOHN C. STRICKLAND, Administrator of the Estate of FANNY EDWARDS, Deceased, v. EMMA EDWARDS JOHNSON, FRED G. EDWARDS, LUNER NELSON, MATTIE WILLIAMS, FREMONT EDWARDS, MARY BARKER, WILLIE EDWARDS, LILLIAN G. EDWARDS, MARGUERITE EDWARDS MELVIN, M. L. EDWARDS, JR., a Minor, SARAH LEE EDWARDS, a Minor, GLENN W. EDWARDS, a Minor, FLORENCE HUFFINES, S. L. COCKMAN, THELMA RICHARDSON and ERNEST COCKMAN, and S. F. HUFFINES, Administrator c. t. a. of the Estate of G. P. EDWARDS, Deceased.

(Filed 25 May, 1938.)

1. Wills § 33a—

An unrestricted devise of real estate passes the fee, but a general devise of realty does not pass the fee when it clearly appears from the language of the will that the testator intended to 'convey an estate of less dignity. C. S., 4162.

2. Same — Will in this case held to devise life estate to widow with remainder over to testator’s children by his first wife.

It' appeared that testator was twice married, and left his second wife, children by his first wife and one child by his second wife him surviving. The will by general devise left his realty to his second wife, “in lieu of her dower,” then his personalty to his daughter by his second wife, and *582then provided that upon the death of his second wife “that all of her property he sold and the proceeds to be divided between” the children by his first wife, naming them. Held: Taking the setting of the parties and construing the will as a whole, it plainly appears that testator did not intend to devise the fee in the realty to his second wife, and she is entitled only to a life estate in the realty with remainder over to his children by his first wife. G. S., 4162.

BARNi-mx, J., dissenting.

Schenck, J., concurs in dissent.

Appeal by plaintiff from Harding, J., at 30 August, 1937, Term, of G-utleoRD. Affirmed.

Tbis is a civil action brought by plaintiff under the North Carolina Uniform Declaratory Judgment Act for a construction of the will of G. P. Edwards, deceased.

G. P. Edwards died leaving a last will and testament, probated and recorded in the office of the clerk of the Superior Court of Guilford County, in Will Book J, page 292, as follows: “It is my will that my funeral shall be conducted without ostentation, and the expenses thereof together with all my just debts be fully paid. I give, devise and bequeath to my beloved wife, Fanny Edwards, in lieu of her dower my two lots on corner of North Elm Street and Carolina Ave., Nos. I give and devise to my daughter, Emma Edwards, all my personal property. It is my will that at Fanny Edwards’ death that all of her property be sold and the proceeds to be divided between Luner Nelson, Mattie Williams, Fremont Edwards, Mary Barker, Luther Edwards, Florence Huffines and Laney Cockman, heirs. Emma Edwards with all personal property. Fred G. Edwards to share in the proceeds one five dollars. G. P. Edwards. (Witnesses) J. E. Smith, J. L. Jones, H. B. Ritter.” Proved and probated: 23 August, 1924.

The above will was properly before the court for a construction thereof, and no question of service of process is raised by this appeal; and all interested persons were made parties to the action.

No other evidence was offered by the plaintiff or the defendant, there being nothing but a question of law to decide. After conclusion of argument of counsel for both parties, plaintiff tendered judgment in his favor as set out in the record. The court declined to render judgment for the plaintiff. Judgment was rendered for the named defendants, as set out in the record, as follows:

“This cause coming on to be heard and being heard before the undersigned judge, presiding over Guilford Superior Court, 10 September, 1937, for a construction of the will of G. P. Edwards, deceased, and a declaration of rights thereunder; and, after argument of counsel for plaintiff and defendants, the court being of the opinion that the testator, *583G. P. Edwards, devised a life estate to Fanny Edwards in tbe two lots on tbe corner of North Elm Street and Carolina Avenue; and tbat tbe remainder in said lots was vested in tbe following persons: lamer Nelson, Mattie Williams, Fremont Edwards, Mary Barker, Lutber Edwards, Lawrence Huffines and tbe beirs of Laney Cockman upon tbe death of tbe said Fanny Edwards.

“Now, therefore, it is ordered, adjudged and decreed tbat Fanny Edwards was devised a life estate in tbe two lots on tbe corner of North Elm Street and Carolina Avenue by tbe terms of tbe will of G. P. Edwards, deceased, as tbe same is recorded and probated in tbe office of tbe clerk of tbe Superior Court of Guilford County in Will Book J, page 293; and tbat tbe remainder in tbe said lots was vested in Luner Nelson, Mattie Williams, Fremont Edwards, Mary Barker, Luther Edwards, Florence Huffines and tbe beirs of Laney Cockman upon tbe death of Fanny Edwards. .

“It is further ordered, adjudged and decreed tbat tbe rents heretofore collected and now held by S. F. Huffines, administrator c. t. a. of tbe estate of G. P. Edwards since tbe death of Fanny Edwards be paid in per stirpes shares to tbe beirs of G. P. Edwards as set forth in tbe preceding paragraph of this order or their beirs or personal representatives.

“It is further ordered, adjudged and decreed tbat tbe cost of this action be taxed against tbe plaintiff and tbat tbe defendants and each of them go without day.

This 21 September, 1937. Wk. F. HabdiNg,

Judge Presiding.”

Tbe plaintiff excepted, assigned error and appealed to tbe Supreme Court on tbe ground: “(1) To tbe action of tbe court in failing to render judgment for tbe plaintiff as tendered; (2) to tbe action of tbe court in rendering judgment for tbe defendant, as appears of record.”

H. R. Stanley for plaintiff.

A. Stacey Gifford, Barney W. Walker, and Chas. T. Hagan, Jr., for defendants.

Clarkson, J.

This case presents but one question: Did tbe testator, G. P. Edwards, by bis will, intend to convey a fee simple estate in bis land to bis second wife, Fanny Edwards, or did be intend to convey only a life estate ?

Tbe setting: (Admitted on argument and brief.) G. P. Edwards by bis first wife bad certain children, named in tbe latter part of bis will. By bis second wife, Fanny Edwards, be bad a daughter, Emma Edwards. There is no question about bis personal property — he left it all to bis daughter, Emma Edwards.

*584N. C. Code, 1935 (Micbie), section 4162, is as follows: “When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.”

The uniform holdings since the passage of this section has been that an unrestricted devise of real estate passes in fee.

In McIver v. McKinney, 184 N. C., 393 (396), citing numerous authorities, it is said: “Nevertheless, it is generally conceded that in the construction of a will the cardinal purpose is to ascertain and give effect to the intention of the testator — not the intention that may have existed in his mind, if at variance with the obvious meaning of the words used, but that which is expressed by the language he has employed. The question is not what the testator intended to express but what he actually expressed in his will, when all its provisions are considered and construed in their entirety.”

In Mangum v. Trust Co., 195 N. C., 469 (471), it is said: “The primary purpose of construing a will is to ascertain and give effect to the intention of the maker. The intention of the maker must be ascertained from the whole instrument.”

We think the language of the present will comes within the exception of section 4162, sufra, which reads as follows: “Unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.”

Taking the setting of the parties and construing the will as a whole, we think the widow was devised a life estate in the two lots and that the remainder was vested in Luner Nelson, Mattie "Williams, Fremont Edwards, Mary Barker, Luther Edwards, Florence Huffines and the heirs of Laney Cockman upon the death of Fanny Edwards.

The principle set forth in the case of Hampton v. West, 212 N. C., 315, is similar to that in the present action.

For the reasons given, the judgment of the court below is

Affirmed.

Barnhill, J.,

dissenting: It does not appear either from the will or the record that G. P. Edwards was married twice or that he had children by his first wife, now deceased, or that Fanny Edwards is his second wife. This is asserted in appellees’ brief. The only evidence offered was the will and we are called upon to interpret that instrument to determine whether Fanny Edwards, by its terms, was devised a fee simple estate in the two lots mentioned in the will.

*585Tbe devise of tbe real estate to Fanny Edwards is general in terras and our statute, C. S., 4162, converts tbe gift into a fee estate. In my opinion, tbe devise does not in plain and express words sbow an intent to limit tbis estate and there is no language in tbe will plainly indicating tbat tbe testator intended to convey an estate of less dignity. Tbe original devise, standing alone, being sufficient to convey a fee estate under our statute and decisions, a subsequent clause in tbe will, expressing a direction for its disposition after tbe death of tbe devisee, will not defeat tbe devise, nor limit it to a life estate. Tbis bas been tbe consistent bolding of tbis Court. Griffin v. Commander, 163 N. C., 230, 79 S. E., 499; Daniel v. Bass, 193 N. C., 294, 136 S. E., 733; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; McDaniel v. McDaniel, 58 N. C., 353; Barco v. Owens, 212 N. C., 30.

Tbe absolute devise is permitted to stand, while tbe subsequent clause is generally regarded as precatory only. Brown v. Lewis, 197 N. C., 704, 150 S. E., 328; Weaver v. Kirby, 186 N. C., 387, 119 S. E., 564; Brooks v. Griffin, 177 N. C., 7, 97 S. E., 730; Bills v. Bills, 80 Ia., 269; 20 A. S. R., 418; 11 R. C. L., 476; 28 R. C. L., 243; Barco v. Owens, supra.

“Tbe rule is well settled tbat in a will no words are necessary to enlarge an estate devised or bequeathed into an absolute fee. On tbe contrary, restraining expressions must be used to confine tbe gift to tbe life of devisee or legatee.” Thus tbe rule bas been stated frequently by tbis Court since Holt v. Holt, 114 N. C., 241.

Tbe only language in tbe will which could be considered as attempting to limit tbe fee devised to Fanny Edwards is tbe provision: “It is my will tbat at Fanny Edwards’ death tbat all her property be sold and tbe proceeds to be divided,” etc. Tbis provision in itself recognizes tbat tbe property is hers. Tbe testator seeks to dispose of her property — not bis. To me, tbis is not plain and express words clearly showing an intent to convey an estate to Fanny Edwards less than a fee. Tbe doctrine of election is not invoked and it does not appear whether under tbis provision tbe testator attempts to direct tbe sale of property owned by Fanny Edwards other than tbat which she received under tbe will. It is simply an attempt to direct the disposition of tbe fee devised to Fanny Edwards after her death.

Tbe words “in lieu of dower” contained in tbe devise to Fanny Edwards cannot possibly be construed as tending to limit tbe fee. Tbe majority opinion does not attempt to so interpret it. Every devise from a husband to bis wife is in lieu of dower whether so expressed or not. Upon tbe death of tbe testator tbe widow must elect whether she shall take under tbe will or under tbe statute. If she accepts tbe devise in tbe will she thereby relinquishes her dower. If she dissents and accepts *586ber dower interest tbe devise immediately becomes inoperative. Tbat tbe testator stated in tbe will wbat tbe law necessarily writes into it cannot be beld to be “plain and express words, clearly showing an intent to convey an estate less than a fee,” wbicb tbe statute requires in order to limit a gift in general terms, wbicb would otherwise convey a fee.

We are not interested in any unexpressed intention of tbe testator, or bis supposed purpose to make provision for any particular set of bis children. We are only called upon to interpret tbe language actually used by him in conformity with our statute and pertinent decisions. In my opinion there is no language in tbe will wbicb can be interpreted as clearly intending a purpose on tbe part of tbe testator to limit tbe estate conveyed to Fanny Edwards. If we are to follow tbe statute and. tbe former decisions of this Court wbicb constitute rules of property, tbe judgment below should be reversed.

SoheNck, J., concurs in dissent.