{ "id": 8618665, "name": "J. R. GOMER and Wife, MARY FRANCES GOMER, AMOS J. GOMER and Wife, EUNICE H. GOMER, R. G. GOMER and Wife, LILLIAN J. GOMER, ETHEL G. RYDER and Husband, W. T. RYDER, BERNICE G. BENTON and Husband, W. W. BENTON, ELLIOTT R. HORTON and Wife, MARY A. HORTON, W. HAGAR HORTON and Wife, MARGUERITE HORTON, WALTER E. HORTON and Wife, VIRGINIA J. HORTON, R. B. PIERCE and Wife, LYDIA H. PIERCE, MINNIE H. HOBBS and Husband, JAMES W. HOBBS, DEMPSEY HORTON and Wife, KATHERINE C. HORTON, ELSIE H. BARNHILL and Husband, S. C. BARNHILL, Plaintiffs, v. M. P. ASKEW, Defendant", "name_abbreviation": "Gomer v. Askew", "decision_date": "1955-09-21", "docket_number": "", "first_page": "547", "last_page": "552", "citations": [ { "type": "official", "cite": "242 N.C. 547" } ], "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": "77 S.E. 700", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "161 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271912 ], "opinion_index": 0, "case_paths": [ "/nc/161/0566-01" ] }, { "cite": "148 S.E. 175", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628046 ], "opinion_index": 0, "case_paths": [ "/nc/197/0215-01" ] }, { "cite": "90 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698480 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/90/0607-01" ] }, { "cite": "95 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273263 ], "opinion_index": 0, "case_paths": [ "/nc/95/0131-01" ] }, { "cite": "8 S.E. 99", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "101 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650223 ], "opinion_index": 0, "case_paths": [ "/nc/101/0206-01" ] }, { "cite": "16 S.E. 321", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "111 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651753 ], "opinion_index": 0, "case_paths": [ "/nc/111/0505-01" ] }, { "cite": "88 S.E. 628", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270599 ], "opinion_index": 0, "case_paths": [ "/nc/171/0400-01" ] }, { "cite": "12 S.E. 909", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "108 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650760 ], "opinion_index": 0, "case_paths": [ "/nc/108/0327-01" ] }, { "cite": "44 S.E. 47", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660237 ], "opinion_index": 0, "case_paths": [ "/nc/132/0476-01" ] }, { "cite": "73 S.E. 2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627066 ], "opinion_index": 0, "case_paths": [ "/nc/236/0594-01" ] }, { "cite": "164 A.L.R. 1426", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "196 Okla. 539", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8900866 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/okla/196/0539-01" ] }, { "cite": "84 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604630 ], "opinion_index": 0, "case_paths": [ "/nc/241/0166-01" ] } ], "analysis": { "cardinality": 645, "char_count": 14792, "ocr_confidence": 0.585, "pagerank": { "raw": 9.779386173779556e-08, "percentile": 0.5320688580685592 }, "sha256": "fcb2f5dbe4095f1abaedfcb356cc82c82dd0ee9c7a88a71306ab2f463c589303", "simhash": "1:0083def41856bb5f", "word_count": 2542 }, "last_updated": "2023-07-14T17:51:17.837681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WiNBORNE and Higgins, JJ., took no part in the consideration or decision of this case." ], "parties": [ "J. R. GOMER and Wife, MARY FRANCES GOMER, AMOS J. GOMER and Wife, EUNICE H. GOMER, R. G. GOMER and Wife, LILLIAN J. GOMER, ETHEL G. RYDER and Husband, W. T. RYDER, BERNICE G. BENTON and Husband, W. W. BENTON, ELLIOTT R. HORTON and Wife, MARY A. HORTON, W. HAGAR HORTON and Wife, MARGUERITE HORTON, WALTER E. HORTON and Wife, VIRGINIA J. HORTON, R. B. PIERCE and Wife, LYDIA H. PIERCE, MINNIE H. HOBBS and Husband, JAMES W. HOBBS, DEMPSEY HORTON and Wife, KATHERINE C. HORTON, ELSIE H. BARNHILL and Husband, S. C. BARNHILL, Plaintiffs, v. M. P. ASKEW, Defendant." ], "opinions": [ { "text": "Bobbitt, J.\nThe testator contemplated that his wife and children would have and take the benefits provided for them in his Will. He devised a part of his real property, the \u201cJackey Jones\u201d tract, to his wife, Lizzie Gomer, during her natural life. He directed that, after her death, the \u201cJackey Jones\u201d tract be sold and (the proceeds) divided equally between all of his children. Further, he directed that all his other property, real and personal, be sold and (the proceeds) divided equally between all of his children. He expressed the desire that Dr. Corbell, the executor, \u201ccome down & take an inventory of my chattel property & real estate.\u201d We think the testator\u2019s intent was that all his property, real and personal, other than the \u201cJackey Jones\u201d tract, be sold forthwith and the proceeds divided equally between his seven children.\nThe beneficial interest of the seven children of the testator in the \u201cJackey Jones\u201d tract were vested remainder interests, their right to immediate enjoyment being subject to no condition precedent save the termination of the life estate of the widow. Trust Co. v. McEwen, 241 N.C. 166, 84 S.E. 2d 642. The intent of the testator in so postponing his children\u2019s right to immediate enjoyment in respect of this tract was for the benefit of the life estate of the widow. Trust Co. v. McEwen, supra.\nWhen the widow dissented, she had \u201cthe same rights and estates in the real and personal property of her husband as if he had died intestate.\u201d Revisal of 1905, sec. 3081. Having made her election, she took nothing under the Will; but she was entitled to dower in the real property (Rev., sec. 3083 et seq.), a child\u2019s part in the personal property (Rev., sec. 132 (2)) and allowances for a year\u2019s support for herself and her three children then under 15 years of age (Rev., sec. 3091 et seq.). (So far as the record discloses, such allowances were not claimed or paid.) Her right of dower related to all real property of the decedent, without distinction between the \u201cJackey Jones\u201d tract and other realty.\nThe widow\u2019s dissent terminated the life estate in the \u201cJackey Jones\u201d tract devised to her by the testator. This accelerated the vesting in the testator\u2019s children of their (previously postponed) right to immediate enjoyment of their interests in this particular tract. Trust Co. v. McEwen, supra, and cases cited.\nIf the testator is regarded as charged with knowledge of the statute law defining the widow\u2019s right to dissent, Thomsen v. Thomsen, 196 Okla. 539, 166 P. 2d 417, 164 A.L.R. 1426, cited in Trust Co. v. Johnson, 236 N.C. 594, 73 S.E. 2d 468, he must be regarded also as charged with knowledge that, if she exercised such right to dissent, under the decisions of this Court such dissent accelerated the rights of the remainder-men. University v. Borden, 132 N.C. 476, 44 S.E. 47.\nThe result of the widow\u2019s dissent was that the real property, subject to the widow\u2019s dower, and the entire personal estate, were to be sold and (the proceeds) divided between his seven children, subject to the payment of the debts, costs of administration, the Parker legacy, and the payment to the widow of her distributive share in the personalty.\nBy whom was this sale for division to be made? It seems plain that the testator intended that Dr. Corbell, the executor, take complete charge of all his property, \u201cmy chattel property & real estate.\u201d There is a single provision in which direction is given that all his property be sold and divided, without distinction between realty and personalty; and the implication is that the same person is to sell both realty and personalty. Saunders v. Saunders, 108 N.C. 327, 12 S.E. 909. It is noteworthy that four of testator\u2019s children were minors and thus unable to make sale except through a next friend or guardian. The interesting provision, \u201cif my wife or any one else should charge my minor children board then my Executor shall become Guardian & shall board them elsewhere,\u201d suggests that the testator contemplated that the executor would have in his hands funds to be paid to or for the benefit of the minor children derived from the sale of his property.\nTrue, the Will conferred no express power of sale on the executor. Is such power reasonably implied?\nWhere land is devised, to be sold for division among heirs or designated beneficiaries, nothing else appearing, the executor has no implied power to make the sale. Broadhurst v. Mewborn, 171 N.C. 400, 88 S.E. 628; Epley v. Epley, 111 N.C. 505, 16 S.E. 321; Gay v. Grant, 101 N.C. 206, 8 S.E. 99. But where both realty and personalty are to be sold for division, a different rule applies. Since the statute (G.S. 28-73, Rev., sec. 62) vests in the executor the power to sell the personalty, and the fund to be divided consists of the proceeds to be derived from the sale .of both realty and personalty, nothing else appearing, the power of the executor to sell the realty involved in making the division is implied. Council v. Averett, 95 N.C. 131; Vaughan v. Farmer, 90 N.C. 607. The authority of these cases is fully recognized in the Broadhurst, Epley and Gay cases, as well as in the later case of Dulin v. Dulin, 197 N.C. 215, 148 S.E. 175.\nThese are rules of construction, to aid in the ascertainment of the testator\u2019s intention. Vaughan v. Farmer, supra. They must yield if the provisions of the will manifest a contrary intent. Lumber Co. v. Swain, 161 N.C. 566, 77 S.E. 700.\nThe rule applied in Vaughan v. Farmer, supra, and cases to like effect, is applicable to the case at hand. Its application here seems in full accord with the testator\u2019s intent.\nConsequently, we reach the conclusion that the executor had implied power to sell all of testator\u2019s real property (as well as all of his personal estate), subject to the widow\u2019s dower. This was done.\nWhen the widow\u2019s dower was allotted it so happened that the \u201cJackey Jones\u201d tract was allotted to her as her dower tract. We assume that the value of this tract was one-third of the value of all of testator\u2019s realty. Be that as it may, the fact that the \u201cJackey Jones\u201d tract became the \u201cdower tract\u201d is a coincidence, without legal significance; and the law applicable is the same as if the widow\u2019s dower had been allotted in other realty.\nSince we hold that the executor\u2019s deed was a good and sufficient conveyance of the land in controversy, subject to the widow\u2019s dower, we refrain from discussing the facts and law bearing upon other defenses interposed by defendant.\nFor the reasons stated, the judgment is\nAffirmed.\nWiNBORNE and Higgins, JJ., took no part in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "W. D. Boone and J. Carlton Cherry for plaintiffs, appellants.", "T. W. Costen and Worth & Horner for defendant, appellee." ], "corrections": "", "head_matter": "J. R. GOMER and Wife, MARY FRANCES GOMER, AMOS J. GOMER and Wife, EUNICE H. GOMER, R. G. GOMER and Wife, LILLIAN J. GOMER, ETHEL G. RYDER and Husband, W. T. RYDER, BERNICE G. BENTON and Husband, W. W. BENTON, ELLIOTT R. HORTON and Wife, MARY A. HORTON, W. HAGAR HORTON and Wife, MARGUERITE HORTON, WALTER E. HORTON and Wife, VIRGINIA J. HORTON, R. B. PIERCE and Wife, LYDIA H. PIERCE, MINNIE H. HOBBS and Husband, JAMES W. HOBBS, DEMPSEY HORTON and Wife, KATHERINE C. HORTON, ELSIE H. BARNHILL and Husband, S. C. BARNHILL, Plaintiffs, v. M. P. ASKEW, Defendant.\n(Filed 21 September, 1955.)\n1. Executors and Administrators \u00a7 12b\u2014\nThe will in suit provided that the executor should \u201ccome down & take an inventory of my chattel property & real estate,\u201d bequeathed the home tract to testator\u2019s wife for life, and further provided that after her death it should be \u201csold & divided (as all of my other property) equally between all of my children.\u201d Held: It was the intent of testator that all of his property, with the exception of the home tract, should be sold forthwith and the proceeds equally divided between his children.\n2. Wills \u00a7 33c\u2014\nWhere the will devises certain lands to testator\u2019s wife with provision that after her death the lands should be sold and the proceeds divided between testator\u2019s children, the children take vested remainder interest in the land with the right to immediate enjoyment being postponed for the benefit of the life estate of the widow.\n3. Wills \u00a7 40\u2014\nThe widow\u2019s dissent from the will terminates her interest in lands devised to her for life and accelerates the right of the remaindermen to immediate enjoyment, and she takes nothing under the will, but is entitled to dower based upon all the real property of which her husband died seized, and a child\u2019s part in the personalty, with allowances for a year\u2019s support for lierself and children under 15 years of age. The fact that dower is allotted in'the same lands which were devised to the widow for life is a mere coincidence and does not affect the principles of law applicable.\n4. Same\u2014\nIf the testator is regarded as charged with knowledge of the statute law defining the widow\u2019s right to dissent, he must be regarded also as charged with knowledge that if she exercises such right, the dissent accelerates the rights of the remaindermen.\n5. Executors and Administrators \u00a7 12b\u2014\nWhere land is devised to be sold and the proceeds divided among heirs or designated beneficiaries, nothing else appearing, the executor has no implied power to make the sale, but where realty and personalty are to be sold for division, nothing else appearing, the power of the executor to sell the realty involved in making division of the realty and personalty, is implied. These are rules of construction, to aid in the ascertainment of testator\u2019s intention, and must yield if the provisions of the will manifest a contrary intent.\n6. Same\u2014\nThe will devised certain lands to testator\u2019s widow for life with further provision that at her death the property, as well as all his other property, real and personal, be sold, and the proceeds equally divided between his children. The widow dissented from the will. Held: The dissent of the widow accelerated the vesting of the right of immediate enjoyment in the remainder, and the executor had authority to sell all the personalty and realty, subject to the widow\u2019s dower, for division of the proceeds among testator\u2019s children.\nWinboi\u00edne and Hiosiks, JJ., took no part in the consideration or decision of this ease.\nAppeal by plaintiffs from Clifton L. Moore, J., March Term, 1955, of Gates.\nCivil action to determine ownership of a 65-acre tract of land. Upon waiver of jury trial, the court heard the evidence. Unchallenged findings include the facts stated below.\nDempsey Gomer died testate on some undisclosed date between 2 May, 1908, the date of his Will, and 25 August, 1911, the date his Will was probated.\nThe dispositive provisions of his Will are these:\n\u201cThis is the last will and testimony of Dempsey Gomer, being of sound mind feeble health I hear by maketh Dr. E. F. Corbell Executor of my estate after my death, I want him to see that I recave a decent burial beside my first wife Lida. Then I want Dr. E. F. Corbell to come down & take an inventory of my chattel property & real estate \u2014 \u25a0 the home track known as the \u2018Jackey Jones track\u2019 which I bequeath to my wife Lizzie Gomer during her natural life after her death to be sold & divided (as all of my other property) equally between all of my children.\n\u201cI bequeath to Charles Parker one hundred dollars or a horse of the same value for faithful services rendered me for the past 12 years. If my wife or any one else should charge my minor children board then my Executor shall become Guardian & shall board them elsewhere.\u201d\nTestator owned both real and personal property. His realty included the \u201cJackey Jones\u201d tract referred to in the Will. He was survived by his widow (Lizzie) and by his seven children, three by his first marriage to Lida and four (then minors) by his second marriage to Lizzie.\nOn 25 August, 1911, when the Will was probated, Dr. Corbell qualified as executor. On 9 September, 1911, the widow dissented from the Will. On 28 December, 1911, the 65-acre tract now in controversy, being the identical land referred to in the Will as the \u201cJackey Jones\u201d tract, was allotted as the widow\u2019s dower tract.\nThe executor sold all personalty and all realty, subj ect to the widow\u2019s dower in the 65-acre tract. Upon final settlement, the executor, after payment of debts, costs of administration and the Parker legacy, paid to the widow as her distributive share in the personalty the sum of $271.54 and paid to each child or his guardian the sum of $506.34, i.e., one-seventh of the residue made available from the sales of realty and personalty. Final settlement was made by the guardian with each child as he or she became 21, the settlement with the youngest child having been made in 1926.\nThe 65-acre tract in controversy and an adjoining 25-acre tract were sold together, subject to the widow\u2019s dower in said 65-acre tract; and on 3 February, 1912, the executor, upon receipt of the purchase price of $1,068.00, executed and delivered a deed therefor to Martin Branton, the highest bidder at public sale. On 22 February, 1912, Lizzie, the widow of Dempsey Gomer, married W. H. Branton, brother of Martin Branton. On 4 March, 1912, Martin Branton and wife, for the recited consideration of $593.00, conveyed the 65-acre tract, subject to the widow\u2019s dower therein, to W. H. Branton. On 25 November, 1918, W. H. Branton and wife, Lizzie Gomer Branton, sold and conveyed the 65-acre tract by fee simple warranty deed, without reservation or exception; and, after mesne conveyances, the 65-acre tract was conveyed to defendant in 1930 and he has had possession since then.\nLizzie Gomer Branton and her second husband, W. H. Branton, sold out and moved away from the 65-acre tract in 1918. She died 18 February, 1952. W. H. Branton died 16 April, 1952. On 28 November, 1952, plaintiffs instituted this action.\nPlaintiffs\u2019 case is grounded upon the allegation that the deed from Corbell, executor, to Martin Branton, in respect of the 65-acre tract, was void because the executor had no power to sell and convey any interest therein. There is no question but that defendant\u2019s title is good if the executor\u2019s deed was a valid conveyance of this 65-acre tract subject to the widow\u2019s dower therein. No questions arise as to (1) the adequacy of sale price, or (2) the accounting and settlements made by the executor and by the guardian.\nDefendant pleaded the validity of the executor\u2019s deed to Martin Branton; also, defendant pleaded facts alleged to constitute an estoppel and bar to plaintiffs\u2019 action.\nJudgment was entered by the court below, adjudging that defendant was owner of the 65-acre tract in controversy, that plaintiffs were not entitled to recover anything by their action and that plaintiffs pay the costs of the action. Plaintiffs excepted and appealed.\nW. D. Boone and J. Carlton Cherry for plaintiffs, appellants.\nT. W. Costen and Worth & Horner for defendant, appellee." }, "file_name": "0547-01", "first_page_order": 589, "last_page_order": 594 }