{
  "id": 8683350,
  "name": "K. J. McKROW v. JOHN PAINTER and another",
  "name_abbreviation": "McKrow v. Painter",
  "decision_date": "1883-10",
  "docket_number": "",
  "first_page": "437",
  "last_page": "441",
  "citations": [
    {
      "type": "official",
      "cite": "89 N.C. 437"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "5 Ired., 430",
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      "reporter": "Ired.",
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        11275275
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      "cite": "5 Ired., 430",
      "category": "reporters:state",
      "reporter": "Ired.",
      "case_ids": [
        11275275
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  "last_updated": "2023-07-14T20:35:46.148190+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "K. J. McKROW v. JOHN PAINTER and another."
    ],
    "opinions": [
      {
        "text": "Ssiith, C. J.\nIt is conceded that, by virtue of the sale under execution against Rebecca Painter and the sheriff\u2019s deed, the plaintiff acquired either an estate in fee or for her life in au undivided moiety of the land described in his complaint; and that the duration of the estate thus transferred depends upon the construction of a devise in the will of her husband, George' Painter.\nThe will, executed in August, 1829, after several nominal, bequests to numerous children, contains the following clause:\n\u201cI also give my dearly beloved wife one hundred and seventy acres of land where I now live, and my mill and my machine;, andjl also give my wife, Rebecca Harris Painter, two negroes, a boy called Major, and a girl called Chaney, and Chaney\u2019s increase; and my horse, beast and all my cattle, and my household furniture, and my working tools, and all my farming instruments; aud all that I possess in this world beside the above stated, if she remains a widow; and if she marries she is only to have a child\u2019s part.\u201d\nProceeding then to make a small intermediate bequest, and to' nominate his executor, the testator adds: \u201cAnd I do authorize my wife, Rebecca, with authority and power, that at her death, to divide this property among our children as she sees proper.\u201d'\nIf this last recited clause is to be construed as embracing the-land as well as- the personal property previously given to the wife, and to operate upon the devised estate so as to restrict its duration to the term of her life, with a power of disposing of the remainder among the children, the plaintiff\u2019s title became extinct upon her death, soon after the suit was begun, and he fails in the action; but if an estate in fee vested, he is entitled to a moiety of the land.\nThe legal effect of this provision is, therefore, the only matter in controversy presented in the appeal.\nThe act of 1784 construes every devise of real estate made in general terms a devise of an estate in fee-simple, unless the intent to convey an inferior estate shall appear by express words, or be plainly implied in the will. The Code, \u00a72180.\nIn support of the construction that the intent to limit the estate is shown, or necessarily implied, in conferring authority upon the devisee to divide the property, and in the mandatory direction for the division and apportionment among the children, according to her judgment, we are referred in the brief o\u00ed'defen-dant\u2019s counsel to Alexander v. Cunningham, 5 Ired., 430, as decisive of the question.\nUpon an examination of the will so interpreted in that case, its provisions will be found essentially different from those contained in the will we arc now to interpret. The intention of the testator, in that case, to convey a life estate only, was manifest in the language employed to express it. His words are these: \u201cI do hereby will to my son, Moses W. Alexander, all my estate, real and personal, for his own use and benefit, and then to be divided off and distributed amongst his children, as he may think proper \u2014 that is to say, my land to be used by him and the profits thereof to be to him, but the land to be by him divided and distributed among his children.\u201d It is plain the testator meant to give the devisee but an estate for life, that is, that he should have the use and enjoy the profits arising from his possession, while the land was itself to go to the children, between whom he had power to distribute it only.- The use and profits arc distin-guishcd from the estate, and while the former are to be enjoyed by the devisee, the latter is to pass to the children, under a power of appointment reserved to their father. In the opinion, the Chief-Justice adverts to the phraseology employed, in that the testator docs not say that the son may dispose of the residue of the estate after his own enjoyment, but \u201c merely that he shall divide and distribute them among his children.\u201d No such mandatory words are found in our case, and no residuary interest is secured to the children, but the power is given to be exercised at the discretion of the wife, without control, for a disposal at her death among the children, if any, as she may see proper\nIt can scarcely be supposed that a limitation over was intended of property which, most of it, if not all, must have been destroyed and worn out during the many years of the wife\u2019s sur-vivorship, and which must have been, in the contemplation of the testator, unless as to such as should remain, and this he places at her disposal, with no obligatory requirements imposed upon her to make any disposition. The devise is not, therefore, cut down to a less estate by the subsequent words.\nBut if it were otherwise, and the subsequent words have the force attributed to them, we do not think, from the context, that the testator intended to apply them, as a qualification, to the devise of the land, but to the personalty only, which might remain at his wife\u2019s death.\nThis part of his property, as separate from the land, was manifestly in his mind when he m^ide the contingent limitation in case of his wife\u2019s marriage, by which she was then \u201conly to have a child\u2019s part,\u201d following the language of the statute in distributing an intestate\u2019s personal estate, to-wit: \u201cIf there are more than two children, then such widow shall share equally with all the children, she being entitled to a child\u2019s part.\u201d The Code, \u00a71478 (2).\nIn like manner the authority is given in the final clause to divide among the children \u201c this property\u201d \u2014 that is, the property already separated in the testator\u2019s mind is to be equally divided between mother and children in the event of her marriage, and distributable among them, according to her judgment, if she remains a widow up to her death.\nThis construction best effectuates the dispositive purposes of the testator, and is the proper rendering of the terms in which they are expressed.\nWe, therefore, concur in the ruling of the court, and affirm the judgment.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Ssiith, C. J."
      }
    ],
    "attorneys": [
      "Mr. M. H. Justice, for plaintiff.",
      "Messrs. Uolce & JFIohe, for defendants."
    ],
    "corrections": "",
    "head_matter": "K. J. McKROW v. JOHN PAINTER and another.\nWills.\nThe testator devised land and bequeathed personal property to his wife, \u201cif she remains a widow, and if she marries she is only to have a child\u2019s part\u201d; and in a subsequent clause says: \u201cIdo authorize my wife with authority and power that, at her death, to divide this property among our children as site sees proper\u201d; Held, that the widow takes a fee-simple estate in the land. The contingent limitation in case of her marriage is referable only \u25a0to the personal property.\n(Alexander v. Cunningham, 5 Ired., 430, cited, distinguished and approved).\nEjectment tried at Fall Term, 1882, of Rutheeeokd Superior Court, before Graves, J.\nThe question involved in this case is, whether a fee-simple or an estate for life was conveyed by the will of George Painter to his wife, Rebecca. The court below held.that it conveyed a fee-simple. There was judgment accordingly, and the defendant appealed. The facts upon which the decision of this court is based are sufficiently set out in its opinion.\nMr. M. H. Justice, for plaintiff.\nMessrs. Uolce & JFIohe, for defendants."
  },
  "file_name": "0437-01",
  "first_page_order": 453,
  "last_page_order": 457
}