# Foil v. Newsome.

> Supreme Court of North Carolina · April 18, 1905 · 138 N.C. 115

URL: https://www.frixlaw.com/law-library/cases/3669363

## Case

- **Full name:** Foil v. . Newsome
- **Court:** Supreme Court of North Carolina
- **Decided:** April 18, 1905
- **Citations:** 138 N.C. 115; 50 S.E. 597; 1905 N.C. LEXIS 235
- **Precedential status:** Published
- **Opinion:** Addendum
- **Judges:** Connor, Walker
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3669363

## Opinion text

The defendants (children of Ingold Newsome) and J. H. Ramsey, trustee, except to so much of the judgment as holds that Tobias Kesler died intestate as to the reversion in the real estate given to Ingold Newsome for life. They insist that the language of item 15 of the will is sufficiently comprehensive to carry the fee subject to the life estate. The facts are set forth in the opinion disposing of the plaintiff's appeal. The same reasons, controlled by the same line of authorities which led us to the conclusion that a life estate passed to Mrs. Newsome, lead us to the same conclusion in regard to the fee. The words "balance and residue of my estate of every kind," we think, include the reversionary interest in the real estate in which a life estate had been carved out. The presumption that a testator intended not to die intestate in regard to any part of his estate is strengthened by the use of language so inclusive as that found in this item of the will. The same observation applies to a consideration of the entire will. He provides for each of his children, carefully excepting one of his grandchildren by name. We find nothing in the will or the condition of the estate or family, so far as we are informed by the record, to rebut the presumption, or cause us to think that he intended the reversion in the land undisposed of by specific devise of uncertain value, (123) by reason of the uncertain time at which the life estate will terminate, to be held until such time and divided among his heirs at law. We infer that Mrs. Newsome, at the time the will was executed, 29 September, 1894, was a young woman, as six of her children are now infants, only one being of full age. We also infer from the size of the several tracts of land described in the complaint, and the fact that they are not specifically devised, that they are of inconsiderable value. In view of these facts, casting light upon his purpose, as indicated by the language used, we conclude that his intention was in harmony with the presumption raised by the law. This view is sustained by the fact that he appoints a trustee to manage and control the property given to his daughter and children and derive an income therefrom. Page v. Atkins , 60 N.C. 268 . We are also of the opinion that the trustee has *Page 90
by implication the power to sell the land for the purpose of converting it into an income-producing property. The usual rule adopted by the courts is to find in language imposing upon an executor or trustee the duty of disposing of a mixed fund or property, an implied power to sell real estate to the end that he may discharge such duty. Vaughan v. Farmer , 90 N.C. 607 ; Crawford v. Wearn , 115 N.C. 540 ; Council v. Averett , 95 N.C. 131 . This construction reconciles the use of the word "invest" — pay over interest or income.
The judgment of the court below in respect to the disposition of the reversionary interest in the land described in the petition must be reversed. As all the parties in interest are before the court, we can see no reason why, if so advised, they may not take an order for the sale of the land by the trustee in this case. In this way the rights of all parties and security of title to the purchaser may be amply protected.
The Superior Court having acquired jurisdiction, may retain the cause and make all proper and necessary orders in the premises. (124) Let this be certified.
Reversed.
Cited: Harper v. Harper , 148 N.C. 458 ; Powell v. Wood , 149 N.C. 238 ; Jones v. Myatt , 153 N.C. 228 ; McCallum v. McCallum , 167 N.C. 311 ; Norris v. Durfey , 168 N.C. 325 ; Laws v. Christmas , 178 N.C. 361 ; Allen v. Cameron 181 N.C. 122 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3669363. Public record. Not legal advice.