#### ELIZABETH JENKINS v. MITCHELL MAXWELL.

A. codicil should be so construed as only to interfere with» the dispositions made in the will, to the extent necessary to give full effect to the codicil.

Where, therefore, a testator gave, in the body of his will, a fee simple in a tract of land to A, and by a codicil ordered the land to be sold by his executor, and the proceeds divided among other persons than A, it was Held that until the exercise of the power of sale by the executor, the legal estate remained in A, the legatee, mentioned in the body of the will.

Action of trespass Q. C. E., tried before 'Osborne, J., at tbe last Spring Term of Ashe Superior Court.

Sidney Maxwell, by his last will and testament, duly executed and admitted to probate, devised the land, embracing the locus m quo and some personal property, to his grand-son, Calvin J. Jenkins, in full estate. Afterwards he made a codicil, in which he devised as follows: “ And inasmuch as my grand-son, Calvin J. Jenkins, has left me and no longer attends to my domestic concerns, * * I do, by this codicil, * * * direct that all my lands, wherever situated, * * * heretofore devised and bequeathed to my grand-son, Calvin J. Jenkins, his heirs and assigns, also, all my stock, &c., be gold by my executor, to the highest bidder, and the proceeds arising from the sale of said lands tobe equally divided, share and share alike, between my wife, Catharine, and children, (mentioning six by name,) instead as heretofore directed.” The testator had also, by tbe body of his will, given land in fee to one of Ms sons, Larkin Maxwell, and by the same codicil, which is partly above recited, be continues : “ Also that tract of land heretofore devised to my son, Larkin Maxwell, his heirs and assigns, whereon he now resides, to be sold as above mentioned, and the proceeds to be equally divided, share and share alike, among my wife and children as above jnentioned, instead as heretofore directed.”

The plaintiff is one of the heirs-at-law of Sidney Maxwell, and the act complained of (cutting timber) was done on that part of the land devised in the body of the will to Calvin J. Jenldns, between tbe death of Sidney Maxwell and the sale *613of the premises by the executoi — no person being actually living on the land at the time.

The defendant pleaded a license, and proved that Sidn'ey Maxwell, in his life time, had given defendant leave to cut ’timber on this land. ' -•

By consent of parties a Verdict was rendered for the plaintiff for a penny, subject to the opinion of the Court on the Whole case, as to the plaintiff’s right to recover, with authority to set aside the verdict and enter a nonsuit, if the' Court should be of opinion against the plaintiff.

Afterwards the Court gave judgment for the plaintiff, and the defendant appealed.

Lenoir, for the plaintiff.

Onovipler. for the defendant.

Pearson, C. J,

The opinion of his Honor is predicated on the idea that the will was revoked in loto, in respect to the land devised to Calvin Jenkins by the codicil. If so, it followed, as the codieil gives to the executor a mere “ naked power to sell,” that the land descended to the heirs-at-law as intestate property, subject to be divested by the exercise of the power of sale, and, consequently, one of the heirs-at-law., there being no plea in abatement, could maintain trespass against a wrong-doer, as the defendant evidently was, (for the license to cut timber being merely gratuitous, terminated at the death of Sidney Maxwell,) for a trespass committed between the time of the death and the sale made by the executor. So, the ease turns on the question : was the will revoked in toto in respect to the land devised to Calvin Jenkins? Or was the effect of the codicil only to revoke the will sub modo, and leave the estate in Calvin Jenkins, subject to be divested by the exercise of the power of sale ?

Upon this question, the opinion of this Court differs from that of his Honor. The definition and effect of a codicil, and the learning on the subject is so fully set out in an opinion filed at the last terra in Raleigh, in the case of Dalton v. Houston, (in Equity) that it is deemed unnecessary to enter upon the subject *614again. Suffice it, that the principle is settled, i. e., a codicil should be so construed as only to interfere with the dispositions lhade in the will, to the extent necessary to give full effect to the codicil. In our case, full effect is given to the codicil by allowing the land to pass to the devisee, subject to be divested by the exercise of the power of sale created by the codicil, and there is no occasion, or necessity, for supposing the intention of the testator was to revoke his will m toto, so far as this land was concerned, so as to let it descend to his heirs-at-law, as undisposed of property.

The testator had changed his mind, and instead of giving the land and other property to Calvin Jenkins, absolutely, by the codicil he directs that it shall be sold by his executor, and the proceeds divided among particular persons j but what is there to show that he intended to die intestate as to his property 2 and that it should devolve on his heirs-at-law and next of kin, according to the statute of distributions, until the executor should sell, and not pass to the devisee and legatee,, Calvin Jenkins, during that interim ? ITe gives a reason for changing his mind and for not making an absolute gift to Calvin Jehkins, as he had done by his will, all of which is comprised in the words, the property to be sold and the proceeds to be dwided as abpve mentioned, instead as h&retofore direeted^$h.&t is, instead of being given to Calvin Jenkins absolutely: so, non sequitur, that it shall be intestate and undisposed of during the interim.

This conclusion is supported by the fact, that in the same codicil he directs a tract of land devised to his son, Larkin Maxwell, “ whereon he now resides,” to be sold “ as above mentioned” and the proceeds divided u as above mentioned,”1 “ instead as heretofore directed,” and there is no motive, or occasion, or reason for interfering with Larkin’s possession until the power of sale should be exercised, whereby the title would be divested. There is error, and on the case agreed the judgment must be reversed, and judgment given for the defendant.

Per Curtam,

Judgment reversed.