{ "id": 8627474, "name": "DURAND A. HALL and CAROLINE H. HALE, Individually, and as Trustees Under the Last Will and Testament of WILLIAM C. WHITE, Deceased, v. FRANK W. WARDWELL and ELIZABETH M. WARDWELL, His Wife, and TRYON FEDERAL SAVINGS & LOAN ASSOCIATION", "name_abbreviation": "Hall v. Wardwell", "decision_date": "1948-03-03", "docket_number": "", "first_page": "562", "last_page": "564", "citations": [ { "type": "official", "cite": "228 N.C. 562" } ], "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": "134 A. L. R., 380", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "136 S. E., 342", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217865 ], "opinion_index": 0, "case_paths": [ "/nc/193/0118-01" ] }, { "cite": "123 S. E., 89", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 812", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655233 ], "opinion_index": 0, "case_paths": [ "/nc/187/0812-01" ] }, { "cite": "149 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270158 ], "opinion_index": 0, "case_paths": [ "/nc/149/0235-01" ] }, { "cite": "138 N. C., 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268839 ], "opinion_index": 0, "case_paths": [ "/nc/138/0115-01" ] }, { "cite": "105 Me., 68", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 627087 ], "opinion_index": 0, "case_paths": [ "/me/105/0068-01" ] } ], "analysis": { "cardinality": 403, "char_count": 7377, "ocr_confidence": 0.451, "pagerank": { "raw": 9.903706046084735e-08, "percentile": 0.5356034270723892 }, "sha256": "cdb7301e5fa14a4b468b0447b35d0f02ff97d69da1a4d583a50ba26f72759b72", "simhash": "1:c17e9713470d1400", "word_count": 1288 }, "last_updated": "2023-07-14T21:52:37.324265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DURAND A. HALL and CAROLINE H. HALE, Individually, and as Trustees Under the Last Will and Testament of WILLIAM C. WHITE, Deceased, v. FRANK W. WARDWELL and ELIZABETH M. WARDWELL, His Wife, and TRYON FEDERAL SAVINGS & LOAN ASSOCIATION." ], "opinions": [ { "text": "Bae-Nhill, J.\nWhile the indefiniteness of the trust provisions in the White will are mooted to some extent, the validity of this trust is not at issue. In any event the will vested title in the widow for life with the remainder in fee in the trustees. G. S. 36-21.\nThe one decisive question is this: Did the will vest in Mrs. White, or in the trustees, or in both, the power to sell and convey the land in fee?\nThe plaintiffs tender a deed which conveys the title they acquired through the deed from Mrs. White and also a deed executed by them as trustees. Hence, if either they or Mrs. White are, under the terms of the White will, vested with power to convey the locus, the title tendered is unassailable and defendants must comply with their contract.\nThe court below concluded that the tendered deeds conveyed \u201ca marketable and indefeasible title in fee.\u201d In this conclusion we concur.\nIn the absence of authority conferred by the will, a devisee for life or a trustee under a testamentary trust has no authority to convey the fee in the land devised. But the power to convey need not be expressly conferred. It may be implied from the context of the will. 54 A. J., 849. It is purely a question of testamentary intent. Tippett v. Tippett, 7 A. (2d), 612; 3 Bogert, Trusts and Trustees, pt. 2, 558.\nThe implication may result from language necessarily requiring tlie exercise of the power, from the statement of purposes, or the conferring of other powers or duties to which the power of sale is essential. 54 A. J., 349. It will be implied where the power to invest and to consume the principal, consisting of real estate, for specific purposes, or to invest and manage real estate, Robinson v. Robinson, 105 Me., 68, 32 L. R. A., ns, 675, or \u201cto invest and keep invested\u201d is conferred, with a devise over of the unconsumed principal. Foil v. Newsome, 138 N. C., 115; Powell v. Woodcock, 149 N. C., 235; Dillon v. Cotton Mills, 187 N. C., 812, 123 S. E., 89; Bank v. Edwards, 193 N. C., 118, 136 S. E., 342; Anno. 134 A. L. R., 380, 400.\nHere the life tenant was authorized to invest and keep invested the principal estate consisting in part of real property \u201cwithout liability for any losses incurred,\u201d and to use any portion thereof she should desire for the maintenance or care of any charitable or philanthropic purpose or individual or cause she might select. This could be accomplished only by a conversion of the land into liquid assets. The conversion into liquid assets required a sale. Hence the power to sell must he inferred.\nThe widow, in the exercise of this power, conveyed the premises to the plaintiffs. They thereby became the owners of the property in fee and the deed tendered by them conveys a like estate $o defendants.\nFurthermore, the trustees who were seized of the premises in fee, subject to the life estate of the widow and her power of disposition, were likewise directed to \u201ckeep such residue . . . invested . . . and use the proceeds . . .\u201d for designated purposes. The right to invest and use the proceeds necessarily implies the power to convert into proceeds by sale.\nIt follows that any asserted defect in the title of plaintiffs as individuals is cured, if cure is needed, by the deed they, as trustees, have tendered to the defendants.\nHence the judgment below must bo\nAffirmed.", "type": "majority", "author": "Bae-Nhill, J." } ], "attorneys": [ "M. B. McCoion for plaintiff appellees.", "W. Y. Wilkins, Jr., for defendant appellants." ], "corrections": "", "head_matter": "DURAND A. HALL and CAROLINE H. HALE, Individually, and as Trustees Under the Last Will and Testament of WILLIAM C. WHITE, Deceased, v. FRANK W. WARDWELL and ELIZABETH M. WARDWELL, His Wife, and TRYON FEDERAL SAVINGS & LOAN ASSOCIATION.\n(Filed 3 March, 1948.)\n1. Wills \u00a7 33f: Trusts \u00a7 14b\u2014\nNeither a devisee for life nor a trustee under a testamentary trust has authority to convey the fee in the land devised in the absence, of authority conferred by the will, but the power to convey need not be expressly conferred but may be implied from the language of the instrument necessarily requiring the exercise of the power to effectuate the testamentary intent.\na. Wills \u00a7 33f\u2014\nA devise of the residue of testator\u2019s property, real and personal, for life, with direction to the life tenant to invest and keep invested the principal and use any portion thereof for any charitable or philanthropic purpose she might select, vests in the life tenant, by necessary implication, power to convoy the real estate in fee.\n3. Trusts \u00a7 14b\u2014\nA devise of property in trust subject to an intervening' life estate, with direction to the trustees to keep the principal invested and use the proceeds for purposes designated (G. S., 36-21), gives the trustees the power to convey the real estate in fee, since the right to invest and use the proceeds necessarily implies the power to convert into proceeds by sale.\nAppeal by defendants from Patton, Special Judge, at January-February Term, 1948, of Polk.\nAffirmed.\nControversy without action to determine whether plaintiffs are entitled to specific performance of a contract of real property.\nWilliam 0. White died prior to 1936, seized and possessed of the land in controversy. He left a last will and testament in which he devised the residue of his property, including the locus, as follows:\n(1) \u201cAll the rest and residue of all property, real and personal,\u201d to his wife, Alida D. White, \u201cto be held and the income therefrom to be used by her, during her natural life, the principal thereof to be invested and kept invested by her as she shall deem best\u201d without liability for losses.\n(2) \u201cAll the rest and residue,\u201d after the death of his wife, \u201cto Caroline H. Hale and Durand A. Hall ... in trust\u201d for certain named uses, \u201cto keep such rest and residue of my estate invested as shall seem to them best and to use the proceeds\u201d as. designated in the will.\n(3) \u201cNotwithstanding the foregoing item 8 of this Will, it is my desire and will that if in her lifetime my wife shall desire, she may use any portion of said rest and residue of my estate that she shall wish so to use\u201d for certain purposes; \u201cany residue thereafter remaining to be used by my said trustees for the purposes set forth in said item 8; of any such use by my wife she to be the sole judge.\u201d\nOn 12 November, 1938, Alida D. White, individually and as executrix of the estate of William 0. White, deceased, executed and delivered to Caroline H. Hale and Durand A. Hall a deed conveying the locus. In this deed full reference is made to the provisions in the White will.\nIn March 1947 plaintiffs contracted to sell the locus to defendants, and defendants deposited in the bank $250 earnest money. Thereupon plaintiffs executed and tendered to defendants a deed sufficient in form to convey an indefeasible fee to the locus. They likewise tendered similar deed executed by them as trustees under the White will.\nDefendants declined to perfect the agreement for that the deeds tendered do not in fact convey a marketable and indefeasible fee to said premises. Thereupon this proceeding was filed to procure an adjudication of the controversy.\nWhen the cause came on for hearing the judge, being of the opinion that said deeds vested in plaintiffs a \u201cmarketable and indefeasible title in fee simple to the property therein described\u201d and that the deeds tendered by them conveyed said title to the defendants, entered judgment for plaintiffs. Defendants excepted and appealed.\nM. B. McCoion for plaintiff appellees.\nW. Y. Wilkins, Jr., for defendant appellants." }, "file_name": "0562-01", "first_page_order": 608, "last_page_order": 610 }