White v. . White

Adams, J.

The right of action survived (C. S., secs. 162, 163, 461) and after the death of W. T. White (26 October, 1923) his heirs at law and his wife, Lizzie P. White, the beneficiary under his will, were made parties plaintiff. The will was probated 8 November and the order of sale was made 17 December, 1923. As the commissioners could sell and convey only such title as the parties owned it is necessary to determine whether the substituted plaintiffs or any of them had an undivided half-interest in fee; that the defendant Dudley A. White had such interest is admitted.

The devise of an estate generally, with the power of disposing of it, carries the fee; but if an estate is devised for life the devisee takes only a life estate, though a power to appoint the fee by deed or will be annexed, unless there be a manifest intent of the testator which would be defeated by adhering to the particular intent. Bass v. Bass, 78 N. C., 374; Patrick v. Morehead, 85 N. C., 62; Long v. Waldraven, 113 N. C., 337; Chewning v. Mason, 158 N. C., 578; Griffin v. Commander, 163 N. C., 230; Darden v. Matthews, 173 N. C., 186. In Norfleet v. Haw *238 kins, 93 N. C., 393, tbe Court said: “Tbe donee is tbe mere instrument by wbieb tbe estate is passed from tbe donor to tbe appointee, and when tbe appointment is made tbe appointee at once takes tbe estate from tbe donor as if it bad been conveyed directly to bim.”

It will be seen from tbe application of these principles that under tbe first item of tbe will Lizzie P. White acquired only a life estate, with power to dispose of tbe fee by her last will and testament. Tbe defect of title is not cured by making tbe testator’s heirs at law parties to tbe action for tbe reason that they may not be tbe ultimate donees under tbe power.

Tbe judgment is

Affirmed.