{
  "id": 8693612,
  "name": "H. T. BASS, Administrator, v. JAMES C. BASS and others",
  "name_abbreviation": "Bass v. Bass",
  "decision_date": "1878-01",
  "docket_number": "",
  "first_page": "374",
  "last_page": "377",
  "citations": [
    {
      "type": "official",
      "cite": "78 N.C. 374"
    }
  ],
  "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": "63 N. C. 78",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11276420
      ],
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      "case_paths": [
        "/nc/63/0078-01"
      ]
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    {
      "cite": "63 N. C. 78",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11276420
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/63/0078-01"
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  "analysis": {
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  "last_updated": "2023-07-14T19:04:18.240606+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "H. T. BASS, Administrator, v. JAMES C. BASS and others."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\n(After stating the facts as above.) The question as to the construe tibn of the will is this: \u2014 Hoes the wife take an absolute estate, or an estate for her life only, with power to dispose of the reversion which by reason of her failure to exercise the power vests in the heirs and distributees of the testator ?\nIf the latter be the true interpretation, the defendant, Emeliza, will share with the others, and if not, she will be -excluded.\nOur opinion is, that the widow takes an absolute estate in tbe property, and that tbe fund must be distributed among-her next of kin under tbe statute entitled thereto.\nThere is no express limitation put upon tbe gift, and the superadded words which undertake to confer upon the wife a power of disposition \u201c by her last will and testament or in any manner she may deem best\u201d cannot be allowed to have the effect of imposing such limitations: The words are unnecessary because the right to dispose of an estate is incident to the estate itself; but they serve more clearly to indicate the testator\u2019s intent, \u25a0 that she shall have the property free from all restraint to possess, use, and dispose ofr in any manner she may choose. Indeed the right to use and dispose of a thing at will, constitutes the essential element of property, and the measure of its value.\nThe law is well settled, that if an estate be given to a person generally with a power of disposal, it is in fee unless the testator gives to'the first taker an estate for life only, and annexes thereto a power to dispose of the reversion. 2 Jar. Wills 171, n. 2; 4 Kent Com. 349; Jackson v. Robins, 16 John (N. Y.) 588; Royers v. Hinton, 63 N. C. 78; Sugdon on Powers, 96.\nWe have expressed our opinion of the meaning and effect of the will, in order to facilitate the settlement of the estates in the plaintiff\u2019s possession. But we can render no judgment until all the parties in interest are properly before the Court. The record shows that ten of the defendants are-infants, without guardian, general or testamentary, upon whom no process has been served as required by C. C. P. \u00a7 59, and that all the defendants came into Court and accepted service of process on the return of the summons. This the infant defendants could not legally do. No answers were put in to the complaint, and it does not appear that any guardian ad litem, was appointed or undertook to represent and protect the interest of the infant defendants in the action.\nThe cause must therefore be remanded in order that the infant defendants may be regularly and properly made parties, and their interest protected, and other proceedings had therein according to law.\nPer Curiam. Judgment accordingly.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Messrs. Midlen Moore and Gilliam <f- Gatling, for plaintiff.",
      "No counsel for defendants."
    ],
    "corrections": "",
    "head_matter": "H. T. BASS, Administrator, v. JAMES C. BASS and others.\nWill \u2014 Construction of \u2014 Service of Process \u2014 Infant Defendant.\n1. A testator by his will gave his entire estate to his wife \u201cto'be disposed of by will or in any manner she may deem bestthe wife died leaving the property undisposed of ; Held, that under the will she acquired an absolute estate in the property and at her death it descended to her heirs and distributees.\n\u2022%, Infant defendants cannot \u201caccept service\u201d of process.\n.(Ilorah v. Horah, Winst. Eq. 107 ; Rogers v. Hinton, 63 N. C. 78, cited and approved.)\nCivil Actioh for the Construction of a Will tried at Spring Term, .1877, of ITalieax Superior Court, before Bux-ton, J.\n\u2022 Turner Bass died in September, 1873, having previously made a will and appointed his widow Rebecca W. Bass, executrix. The will was proved shortly after the testator\u2019s death, \u00e1nd she accepted the trust of the office.\nThe only disposition made of the testator\u2019s estate is contained in the first clause of the will, which is in these words; \u201c I give, bequeath and devise all of my estate of \u25a0every kind and denomination, real, personal and mixed, to my beloved wife, Rebecca W. Bass, to be disposed of by will or in any manner she may deem best.\u201d\nRebecca W. Bass died intestate in April, 1877, without \u2022making any disposition by will or otherwise of the property \u2022\u2022derived from her husband and then remaining in her hands. 'The plaintiff soon afterwards took out letters of administration on her estate, and also letters of administration de bonis non with the will annexed on the estate of the testator. The plaintiff and the defendants are heirs and distributees of both the testator and the intestate, except the defendant Emeliza,-who'is the daughter of the testator by a former wife.\nThe action is brought by the plaintiff as administrator of \u2018both estates, to obtain a construction of the will in order that he may pay over the funds in his hands to the parties -whom the Court may declare entitled thereto, llorah v. llorah, 1 Winst. Eq. 107.\nHis Honor held that said Rebecca, the plaintiff\u2019s intestate, was at the time of her death, seized and possessed of ;all the property of the testator, and that the same descended to her heirs and distributees. From which ruling the plaintiff administrator with the will annexed of Turner Bass, and the defendants W. IT. Braswell and wife Emeliza Braswell .appealed.\nMessrs. Midlen Moore and Gilliam <f- Gatling, for plaintiff.\nNo counsel for defendants."
  },
  "file_name": "0374-01",
  "first_page_order": 390,
  "last_page_order": 393
}