concurring: Petitions to rehear, except as to tbe time of filing, are regulated by rules adopted by tbis Court, and not by statute, because a statute cannot be suspended, and a rule may be, if tbe justice of tbe cause requires it. They are for convenience and to aid in tbe attainment of justice, and not to perpetuate a wrong.
If, therefore, I come to tbe conclusion that a decision of tbis Court is erroneous, and that it unjustly deprives a citizen of bis property, I shall favor a reversal of tbe decision, although no fact has been overlooked, and no new authority can be found.
Entertaining tbis view, I feel that it is proper for me to consider tbe questions presented by tbe petition, and in tbe outset it is well to state tbe facts.
In August, 1902, W. R. Williams died, seized in fee of tbe land in controversy and of a town lot, leaving a will, in which be disposed of bis property as follows:
“I give, devise, an'd bequeath unto my beloved wife, Carrie Williams, all my property, real and personal and mixed, of what nature or kind soever, and wheresoever tbe same shall be at tbe time of my death, to have and to bold during her natural life, and at tbe death of my wife, tbe said Carrie Williams, tbe said property or as much thereof as may be in her possession at tbe time of her death, is to go to Bettie Meton, her heirs and assigns forever.
“And I do nominate, constitute, and appoint my said wife tbe sole executrix of tbis my last will and testament, hereby revoking and making void all and every other will or wills at any time heretofore made by me, and do declare tbis my last will and testament.”
Shortly thereafter tbe devisee, Carrie Williams, executed a deed’ to tbe defendant Green, her brother-in-law, purporting to convey tbe town lot in consideration of $100, which tbe defend*11ant alleges in bis answer be paid to ber, and on 23 February, 1903, sbe purported to convey to said defendant in fee tbe tract of land in controversy, in exchange for a town lot conveyed to ber in fee.
Tbe deed to tbe defendant does not refer to any power conferred by tbe will, and tbe only consideration to support it is tbe execution of tbe deed to ber in exchange therefor.
W. R. "Williams and wife bad no children, and Bettie Melton, now Bettie Herring, is their foster child, reared by them since sbe was ten weeks old.
It is true that tbe intention of the testator should be gathered from tbe will and tbe attendant circumstances, but it should be clear and unmistakable before it is held that one who takes a life estate under tbe will can, within six months after tbe death of tbe testator, sell one of tbe two- pieces of land devised, and bold and use tbe money, and can exchange tbe other for other land and own that in fee simple, and thereby defeat tbe interest of tbe remainderman.
I concur in tbe construction placed upon tbe will in tbe opinion of Mr. Justice Brown, but if by any interpretation a power of disposition is conferred on tbe life tenant as to tbe land, it could only be exercised when necessary for support and maintenance, which does not appear here.
Tbe testator gave to bis wife a life estate in tbe land and personal property, and to bis foster child an estate in remainder, and be must have intended both to take effect.
He appointed bis wife executrix, and knew bis personal property would be in ber possession, and be also knew that it might be consumed or destroyed, and that in all probability some of it might not be in ber possession at ber death, and it seems to me that a reasonable construction of tbe language, “or as much thereof as may be in ber possession at the time of ber death,” is that it refers to tbe personalty. When there are found two species of property, tbe one technically and precisely answering tbe description in tbe devise, and tbe other not so exactly answering that description, tbe latter will be excluded. Bolick v. Bolick, 23 N. C., 248.
*12I ■ will not undertake to review the authorities supporting this view, as they are stated with clearness and accuracy in the opinion of the Court.
I also think it was necessary for the deed to refer to the power.
It is said in Kent, vol. 4, p. 335: “The general rule of construction, both as to deeds and wills,' is that if there be an interest and a power existing together in the person, over the same subject, and an act be-done without a particular reference to the power, it will be applied to the interest and not to the power,” and this is cited with approval in Exum v. Baker, 118 N. C., 545.
The case of Towles v. Fisher, 77 N. C., 438, I think a direct authority on this poinf. In the case under consideration all the property, real, personal and mixed, is devised to Carrie Williams for life, and at her death the said property, or so much thereof as may be in her possession at the time of her death, is given to Bettie Melton.
. Carrie Williams attempted to convey to the defendant in fee.
In the Towles case, William Shaw devised his land to his wife for life, and he devised to James Oállum and Mary Cal-lum “on the death of his wife, all the property, real and personal, belonging to his estate, which may be in possession at the time of her death.” There was a codicil providing that sales should be made with the consent of the executors.
The wife attempted to convey in fee without the consent of the executors, and without reference to the power.
After holding that the deed was not valid because the executors did not consent thereto, the Court says: “In addition to this, when -the donee of a power to sell has an estate of her own in the property affected by the power, and makes a conveyance of the property without reference to the power, the construction established by the decisions is that she intends to convey only what she might rightfully convey without the power. These doctrines are so generally accepted that we think no reference to the authorities is necessary. They may be found *13cited in tbe brief of tbe counsel for tbe plaintiff. Tbe deed to Primrose conveyed only tbe life estate of Priscilla Sbaw.”
Tbe rule seems to be well established, and it seems to me to be meaning-less if it be said tbat when one wbo owns an interest witb a power of disposition conveys more tban be owns, without reference to tbe power, tbat the conveyance will be referred to tbe power.
If, however, these views are not sound, and by correct construction tbe wife took a life estate under tbe will, witb tbe power to sell tbe land, I still think tbe deed to tbe defendant is not good, because I do not think an exchange of lands was contemplated, or tbat it would be a valid execution of tbe power for tbe life tenant to convey tbe land devised to her for life to her brother-in-law in fee, and receive in exchange therefor a deed in fee for another tract of land.