Cabarrus County NcArchives Court.....Martin Phifer, John F. Phifer V. 1847
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Source: Nc Reports
Written: 1847

John F. Phifer & Al vs. Martin Phifer & Al, 1847

A testator devised as follows, after providing for the payment of his 
debts, "I will and bequeath the residue of my estate of every kind and 
description to my dearly beloved wife, to manage the same as she may think 
most advisable, for her own support and for the support and education of our 
children, as long as she remains a widow, and, should she again intermarry, it 
is my will, that my property should be divided between her and her children, 
agreeable to the laws of North Carolina. 3rd. And should she not intermarry, 
until my children become of lawful age, I hereby invest her with full and 
ample authority to divide my property among them, as she may deem most 
expedient."

Held, that, the widow, remaining unmarried until her death, had no right to 
dispose of this property, at her discretion, by will, but that, in such an 
event, she had a life estate, and the property, after her death, was to be 
divided among the children of the testator, as it would be divided if he had 
died intestate.

Cause removed from the Court of Equity of Cabarrus County, at the Spring Term 
1847.

John Phifer, late of the County of Cabarrus, died on the 18th of October 1845, 
having previously, on the 21st of November 1818, made and published his last 
will and testament, duly executed to pass both real and personal estate, in 
which were contained the following clauses, to wit:

"I desire that all my just debts be as speedily paid as the circumstances of 
my estate will render convenient.

"2nd. I will and bequeath the residue of my estate, of every kind and 
description, to my dearly beloved wife, to manage the same, as she may think 
most advisable, for her own support, and for the support and education of our 
children, as long as she remains a widow, and, should she again intermarry, it 
is my will that my property should be divided between her and my children, 
agreeable to the laws of the State of North Carolina.

'3rd. And should she not intermarry, until my children become of lawful age, I 
hereby invest her with full and ample authority to divide my property among 
them as she may deem most expedient."

Some time in the year 1840, the testator added a codicil to his will, which 
does not appear, however, to have been executed, in the manner required by law 
to pass real estate. The testator left, surviving him, his wife Esther Phifer, 
and seven children, to wit: Martha Phifer, John F. Phifer, Caleb Phifer, 
George L. Phifer, Elizabeth, the wife of E.R. Gibson, Sarah Ann, the wife of 
Robert W. Allison, all of full age, and Mary B. Phifer, a minor under the age 
of twenty-one years.

He also left a grandson, John Phifer Young, the only child of a daughter named 
Louisa, who had intermarried with Robert S. Young, and died a few months 
before her father.

Esther Phifer, the widow of John Phifer, and who was the wife whom he mentions 
in his will, remained unmarried, until her death, which occurred in March 
1846. Previously thereto, she had made and published a last will and 
testament, duly executed to pass real and personal estate, wherein, after 
reciting that she had been empowered by the will of her late husband to divide 
his property among their children, she proceeded to give to each one of the 
children, by name, certain specified parts of the property, both real and 
personal. These portions were not of equal value, but valued from $6,000, the 
smallest, to $15,000, the largest estimated share. She also gave to her 
grandson, John Phifer Young, six negro slaves, estimated to be worth about 
$2,000. Among the property given in her will was a tract of land, devised to 
her son George L. Phifer, worth about $7,500, which her husband purchased 
after the publication of his will.

Upon the probate of the will of John Phifer, his sons, John F. Phifer and 
Caleb Phifer, took out letters of administration thereon, with the will 
annexed; and they also took out letters testamentary upon the will of their 
mother, and meeting with difficulties in carrying the provisions of the said 
will into effect, they filed this bill, to which all persons interested were 
made parties, to get the advice of the Court upon the following questions:

Whether Esther Phifer, the widow, had any power, under the will of her 
husband, to dispose of and divide any of his property among their children, by 
her last will and testament. 

2dly. And, if she had, whether she had the further power to bequeath the 
slaves, mentioned in her will, to John Phifer Young, their grandson, and 
whether the executors ought to deliver the said slaves to him.

3dly. Whether, if the said John Phifer Young is one of the persons among whom 
the widow was directed to divide the property of her husband, he is bound by 
the by the allotment made in her will, or is entitled to demand from the 
executors a larger portion of the said property.

4thly. Whether the said devise by the said widow of the tract of land, 
purchased by her husband after the making of his will, to her son, George, 
vested the said land in him.

Thompson and Coleman for the plaintiffs
Avery and Wilson for the defendants

[NC Supreme Court]
Battle, J. The answer, which we feel bound to give to the first enquiry, 
renders the consideration of the other questions, presented in the bill, 
unnecessary. We are of the opinion that the will of John Phifer did not confer 
upon his widow the power to divide the estate among their children by her last 
will and testament, much less to divide it among them in unequal portions. The 
will of the testator was made in the year 1818, about twenty seven years 
before his death, and although the ages of his children are no otherwise 
stated in the pleadings, than that all of them, except one, were of full age, 
when the bill was filed in the fall of 1846, yet we may fairly infer, that, 
when the will was made, all of them, who were then born, were under age and 
most probably infants of very tender years.

In that condition of his family, he gives to his wife, after the payment of 
his debts, the whole residue of his estate, real and personal, so long as she 
might remain a widow. He gives it to her, however, not absolutely for herself 
and for her own sole use and support, but also for the support and education 
of his children. While she should remain his widow, the entire confidence, 
which he expressed in her prudence and discretion, induced him to confer upon 
her the exclusive management of the property for those necessary and important 
purposes. But, should she again intermarry, then her situation would be so 
essentially changed by the new relations, which she would contract, that he 
thought it no longer proper to entrust her with the property, which he 
designed for their children.

He therefore directs a division of the whole estate between her and the 
children, according to the law of the State. So far there is no difficulty in 
ascertaining his intentions, for they are clearly expressed and seem 
reasonable and proper. Then comes the third clause, which at first view, 
appears somewhat obscure, but the obscurity vanishes, when we consider his 
intentions respecting his family, previously expressed in the second clause, 
and apply them to another state of things, which he foresaw might possibly 
occur.

His widow might not marry again at all, or, at least, might not do so, until 
after the education of some or perhaps all of their children might be 
completed, and they have arrived at proper age to marry and settle, or 
otherwise engage in the active duties of life. Should such be the case, they 
would need a portion of that property, which had been entrusted to their 
mother for their benefit. To provide for such exigencies, he gives to her the 
power to divide the property among them, as she might deem most expedient, and 
this power she might execute from time to time, as the occasion for its 
exercise might occur.

He thought, too, that she would know best, what kind of property would be most 
suitable for each one of the children, as he or she might arrive at lawful 
age, and such kind he leaves it to her discretion to give, keeping in view, 
however, that equality in the shares of the children, indicated in the second 
clause of his will. Without the power to make such allotments, the children 
would either be unprovided for, or would take and hold what their mother might 
put in their possession, as hers, and not as their own, which was certainly 
contrary to the intention of the testator.

From this exposition of the testator's intention, as declared in the third 
clause of his will, it is manifest, that the power given to the widow was to 
be executed by a deed or other instrument, inter vivos, and not by her will. 
Indeed, in the execution of the power, no reference is made to her death, but 
to her marriage after the children or some of them should have arrived at 
lawful age. A power given generally may, it is true, be executed, either by 
deed or will, unless the particular mode of execution is prescribed. But the 
mode of execution, when the power is given by will, depends on the intention 
of the testator, and that is to be ascertained upon a fair construction of the 
will, like any other intention, when the terms are not express.

Our opinion being, that the power, given in the will of the testator to his 
widow, has not been executed, the result is, that the effect of his will has 
been to give all the estate therein effectually devised or bequeathed to his 
widow for her life, with the remainder to all the children, and, as she is now 
dead, the estate must be equally divided between all the living children, and 
John Phifer Young, the only heir at law of Mrs. Louisa Young, another child, 
who died after the making of her father's will, but before his death. John 
Phifer Young takes the share, to which his mother, if living, would have been 
entitled under the Act of 1816, 1 Rev. Stat. ch. 122, sec. 15. The real estate 
purchased by the testator after the making of his will, whether devised 
therein or not, by force of the Act of 1844, must be divided in the same 
manner.

Per Curiam
Declared accordingly

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