SARAH E. DEVEREUX and others vs. BENJAMIN DUNN.
A devised as foilows; “ I devise and bequeath to my wife, S. E. D., and to my daughter, E. J. D., and their heirs forever, all my estate, real and personal, to be equal and joint heirs to sell and dispose of the same, and to the survivor on the death of either of them; and should my wife bring forTh a living child, being now in a slate of pregnancy, 1 make such child equal and joint heir with my child E. J. D. and my wife S. E. D. I further appoint my wife S. E. D. sole executrix, all my estate real and personal being at her absolute disposal during the minority of my child or children, she having the sole guardianship of said children.” The testator died, and the child of which his wife was pregnant was afterwards born: Held, 1st, that on the birth of the posthumous daughter, the mother and her two daughters were devi-sees and legatees in common in fee, subject, at least, as between the mother and her daughter E. J. D., to an executory devise over to the survivor. 2dly, that the widow had no power under the will to sell the real estate; that the deed of the daughters, they being under age, would be either void or voidable, and, therefore, that a contract for the sale of the land could not be enforced.
This cause was transmitted, by consent of parties, to the Supreme Court, from the Court of Equity of Bertie county, at Fall Term, 1841.
The bill was filed at Fall Term, 1841, in the name of Sarah E. Devereux, Elizabeth J. Devereux and Georgiana Devereux, the latter being infants, who sued by their mother, the said Sarah, and alleged, that in the year 1837, George P. Devereux, of the county of Bertie, departed this life, having&rst duly made and published his last will and testament, in writing, whereby he devised to the plaintiffs a certain plantation in the county of Bertie, and bequeathed them the negroes, stock and tools, which were upon the same; and the plaintiffs further alleged, that by the said will, certain powers of sale were vested in the said Sarah Ec — . *207that in the execution of the said power, the said Sarah E., in the month of March, 1841, contracted to sell the said land. * ' ' slaves, stock and tools to the defendant, Benjamin Dunn, by written articles, a copy of which was annexed to the bill, in consideration of the sum of twenty-five thousand dollars, to be paid in the manner stipulated in the said articles. The plaintiffs further alleged, that the said Benjamin was perfectly willing to perform the contract, and that the said Sarah was also perfectly satisfied therewith, but that the said Sarah and the said Benjamin were advised that the said Sarah might have exceeded the powers given by the said will, and the said Sarah was unwilling so to do, and the said Benjamin very reasonably might decline completing the said purchase, until he was certain that the said Sarah had the power to convey to him a perfect and indefeasible title. The plaintiffs then averred that they were advised that the said Sarah had, in and by the said will, ample power to make the said contract of sale, and they prayed that the said Benjamin might specifically execute the same.
The defendant in his answer admitted the death of Geo. P. Devereux, the execution and probate of his last will and testament, and the contract between the defendant and the plaintiff Sarah, as stated in the plaintiff’s bill, and averred his readiness to comply with this contract, on his part, provided the said Sarah was authorized by the will of the said George to make such contract, and provided he could receive a secure title to the property contracted to be sold to him.
The following isa copy of the will referred to in the bill and answer:
I, George P. Devereux, of North Carolina, being in sound and disposing mind and memory on this 5th day of May, 1837, now revoke ali my former wills and testaments.
I give and bequeath to my ever dear wife Sarah Elizabeth Devereux, and to my dear daughter Elizabeth Johnson Dev-ereux and their heirs forever, all my estate, real and personal, after all my debts are paid, to be equal and joint heirs to sell and dispose of the same — and to the survivor on the death of either of them. And should my wife bring forth *208a living child, being now in a state of pregnancy, Í make such child equal and joint heir with my child Elizabeth Johnson Devereux and my wife Sarah Elizabeth Devereux. j further appoint my wife Sarah Elizabeth Devereux sole executrix — all my estate, real and personal, being at her absolute disposal during the minority of my said child or children, she having the sole care and guardianship of said children. Being now, as I apprehend, on the borders of eternity, I solemnly declare this to be my last will and testament, in presence of (Signed)
G. P. DEVEREUX.
(Attested by three witnesses)
Whereas, I, George P. Devereux, of the State of North Carolina, having made and duly executed my last will and testament, in writing, bearing date the Sth day of May, A. D. 1837: Now, I hereby declare this present writing to be a codicil to my said will, and direct the same to be annexed thereto and taken as part thereof. And I do hereby give and bequeath to my dear wife Sarah Elizabeth Devereux, and to my dear daughter Elizabeth Johnson Devereux, and to any future issue of my wife now enciente, due proportionSj equally to be divided of, in and to, any and airlands, tenements, slaves and other personal estate which may come to me by devise, descent or gift, from my father or any other source, to them and their heirs and assigns forever, and in case of either of them dying without a will, to the survivor or survivors of them, their heirs and assigns, forever. In witness whereof, I, the said George P. Devereux, have, to this codicil, set my hand and seal, this oth day of May,,in the year of our Lord .one thousand eight hundred and thirty-seven.
(Signed) G. P. DEVEREUX.
(Attested by three witnesses)
The cause was set for hearing upon the bill, answer and exhibits, the latter consisting of the will and the contract referred to, and was then transmitted to this court.
Badger for the plaintiffs.
No counsel for the defendant.
*209Daniel. J.
The bill is brought for a specific execution of an agreement, entered into bv the defendant and Sarah" Sarah E. Devereux, that the defendant would purchase the land, slaves and farming stock therein mentioned. The defendant is willing to complete the purchase, if he can get a good title to the whole property. The complainants’ title to convey the land rests upon the last will and testament of George P. Devereux, the late husband of the plaintiff Sarah É. Devereux, and father of the other plaintiffs. The will is made a part of the case; and, in construing it, vve will say, Jirst, that on the birth of the daughter Georgiana, the too-ther and her two daughters were devisees and legatees as tenants in common in fee; subject, at least, as between the mother and her daughter Elizabeth, to an executory devise over to the survivor on the death of either of them. Whether the words “and to the survivor on the death of either of them” extends to the share of Georgiana, it is not now necessary to declare. Sufficient it is to say, that Mrs. Dev-ereux has not, under the words contained in this part of the will, “to be equal and joint heirs to sell and dispose of the same,” power to make an absolute title in fee, or such a title ns this court will compel a defendant to take. The two infant daughters have interests in the estate, and any deed from them would be void or voidable. Secondly; the testator, after making his wife sole executrix, speaks as follows: “all my estate, real and personal, being at her (his wife’s) absolute disposal during the minority of my said child or children, she having the sole care and guardianship of said children.” We are unable to see from this clause any power given to Mrs. Devereux to convey for a longer period than her children respectively remain under the age of twenty-one years. The plaintiffs in no way can malee a good and absolute title in fee to the land, so far as we caa discover. The bill must be dismissed with costs.
Per Curiam, Bill dismissed with costs.