The plaintiff contracted to sell a tract of 17 1/2 acres to the defendant, who now refuses to pay for the same upon the ground that the plaintiff cannot execute a good title. The plaintiff acquired title under the will of his wife.
Two questions are presented on this appeal. It appears in the probate of the will that the testatrix, "holding the instrument in her hands, with her name written at the bottom, acknowledged and declared the same to be her last will and testament; that the same had been signed by her; that she then and there requested the witnesses to sign the instrument, which they did in her presence and at her request as witnesses." This was sufficient.Elbeck v. Granberry, 3 N.C. 233; Bateman v. Mariner, 5 N.C. 176. This acknowledgment was of the same effect as if the testatrix had signed in the presence of the witness, which indeed is more than the statute requires. Inre Herring, 152 N.C. 260.
The provision in the will in controversy is as follows: "I give and bequeath to my beloved husband, J. H. Ripley, all my real estate consisting *Page 129 of land, houses and whatsoever it may be in Hendersonville, N.C. or wheresoever it may be found, also all my personal property to use as he thinks best for the maintenance of our children." Upon this language, especially taken in connection with the attendant circumstances, we are of opinion that the plaintiff took as trustee, with power under the will to sell and convey the property in fee simple. The primary purpose in construing a will is to ascertain the intention of the testator from the language used by him. In ascertaining such intention it is competent to consider the condition of the testator and family and all the attendant circumstances. Parks v. Robinson, 138 N.C. 269. InCrawford v. Wearn, 115 N.C. 540, it was held that the "power to invest or use" conferred upon the life tenant the power to (160) convey in fee simple.
It appears upon the "facts agreed" in this case that the testatrix had executed mortgages upon the land described, aggregating $2,200, which were unpaid and a lien upon her land at the time of her death, and that she left no fund or personalty with which to liquidate said indebtedness; that the land is not valuable for agricultural purposes and it is without improvements thereupon except a cottage, and no income can be derived from the land suucient [sufficient] to maintain the family of four children who survived her, except by a sale; that it was necessary for the plaintiff to sell the land to obtain means of maintenance for the children. Upon these facts it is placed beyond reasonable doubt that the intention and meaning of the testatrix was to vest the husband with authority to sell said land, and that he can make a good title in fee thereto.
Upon the case agreed the judgment must be
Reversed.