
    ODELL B. DOUB and Wife, BERNICE H. DOUB; ESTELLE G. HARPER, Individually and as Executrix of the Will of W. L. HARPER, Deceased; EMILY HARPER OGBURN and Husband, CARL D. OGBURN; EMILY C. OGBURN, Unmarried, and CARL D. OGBURN, JR., Unmarried, v. ANDREW BLAINE HARPER, Widower; ELIZABETH SIMPSON HARPER, Widow; ELIZABETH SHANNON HARPER, an Infant 13 Years of Age; LEAH ELIZABETH HARPER, an Infant 7 Years of Age; and Any and All Persons Not Now in Being, and Any and All Persons Under Any Disability, and Any and All Persons Whose Names and Residences Are Not Known, Who, Because of or in Any Contingency May, to Any Degree or Extent Become Interested in the Lands Involved in This Action Which Was Brought to Quiet Title to Said Lands.
    (Filed 7 June, 1951.)
    1. Executors and Administrators § 13b—
    A testator may confer on his executor by bis will the power to sell bis real property for any lawful purpose to which the testator wishes the proceeds of his real property to be applied.
    
      2. Same—
    A testamentary power to sell real property generally continues as long as tliere remains an unfulfilled object or purpose of testator in aid of which it was intended that the power should or might be exercised.
    3. Same—
    Whether a testamentary power to sell real property extends beyond the period that the executor is to perform his ordinary legal duties in settling the personal estate depends on the intention of the testator as expressed in the will.
    4. Wills § 31—
    A phrase in a will should not be given a significance which clearly conflicts with the evident intent and purpose of the testator as gathered from the four corners of the instrument.
    5. Executors and Administrators § 12b — Power of disposition held not terminated upon completion of administration of personalty- and the filing and approval of final account.
    Testator made his wife his executrix and devised his real property to his wife for life and then to his children, with provision that should she remarry the realty should be equally divided between her and the children, with further provision giving the executrix power to sell “any and all property of my estate during its administration or confirmation,” immediately followed by power to sell at public or private sale and transfer legal title thereto. Held: The power to sell does not terminate upon the completion of the administration of the personalty, and the filing and approval of the final account, but such power continues during the life of the widow or until her remarriage so she may sell and reinvest in order to effectuate the purpose of testator that the property bring in an income for the use of the widow.
    6. Executors and Administrators § 26—
    An executor does not abrogate a testamentary provision giving him power to sell the realty after the completion of the administration of the personal estate by making a Anal settlement, but neither the final account nor its approval by the clerk and discharge of the executor can affect matters not included or necessarily involved in the account.
    Appeal by plaintiffs from Nettles, J., at the March Term, 1951, of Forsyth.
    Civil action under G.S. 41-10 to quiet title to realty.
    The controlling facts are not in dispute. They are summarized in the numbered paragraphs set forth below.
    1. W. L. Harper, a resident of Forsyth County, North Carolina, died intestate on 15 December, 1936, survived by his widow, Estelle G. Harper; his son, James Lewis Harper; and his daughter, Emily Harper Ogburn. The daughter is married to Carl D. Ogburn, and has two children, Emily C. Ogburn and Carl D. Ogburn, Jr. ~W. L. Harper left a small personál estate; and an undivided one-third interest in 190 acres of land situate in Lewisville Township, Forsyth County, North Carolina.
    2. The will of W. L. Harper was admitted to probate before the Clerk of the Superior Court of Forsyth County on 8 January, 1937. The will contains these provisions:
    First. .After the payment of my just debts, including my funeral expenses, I bequeath and devise all my real estate, or any interest therein to my wife, Estelle G. Harper, during her lifetime and then absolutely to my two children, Emily Ogburn and James Lewis Harper, share and share alike in fee simple. Should my wife, Estelle G. Harper, remarry, then this real estate shall vest immediately in three equal parts in Estelle G. Harper, Emily Ogburn and James Lewis Harper in fee simple. Should either Emily Ogburn or James L. Harper predecease their mother, Estelle G. Harper, then their children shall share in the estate per stirpes.
    
    Second. I devise and bequeath all of the residue of my property, both personal and mixed of whatsoever kind or nature to my wife, Estelle G. Harper during her lifetime and after her death to my two children, Emily Ogburn and James L. Harper absolutely. Should my wife, Estelle G. Harper, remarry, then all my personal property shall be divided equally between my wife, Estelle G. Harper and my two children, Emily Ogburn and James Lewis Harper share and share alike absolutely and in case of the death of either of my two children before my wife, then their children shall share in the property per stirpes.
    
    Third. I nominate and appoint Estelle G. Harper as Executrix of this my last will and testament, and designate that the said Executrix shall not be required to give bond by the court administering this will and I give unto my said Executrix full power to sell, mortgage, hypothecate, invest, re-invest, exchange, manage, control and in any way deal with any and all property of my estate during its administration or confirmation and the said Executrix is hereby given authority to sell real estate or personal property at public or private sale and convey the same by such Deeds or other instruments of conveyances as may be necessary to transfer legal title thereto.
    3. Letters testamentary were issued to Estelle G. Harper as executrix of the will of W. L. Harper by the Clerk of the Superior Court of Forsyth County on 8 January, 1937.
    4. Estelle G. Harper, Executrix of the "Will of W. L. Harper, filed an ex parte final account in the office of the Clerk of the Superior Court of Forsyth County on 5 May, 1938, showing that she had fully administered upon the personal estate of her testate. The Clerk thereupon entered an order approving the final account and purporting to discharge the executrix.
    
      5. James Lewis Harper, a resident of Forsyth County, died intestate on 13 January, 1946, survived by his widow, Elizabeth Simpson Harper, and his two daughters, Elizabeth Shannon Harper and Leah Elizabeth Harper.
    6. Estelle G. Harper filed an ex parte petition before the Clerk of the Superior Court of Forsyth County on 4 January, 1950, alleging the matters set forth above and praying “that the estate of . . . W. L. Harper be . . . reopened to the end . . . that . . . Estelle G. Harper, Executrix named in the will of the said W. L. Harper, may exercise the power of sale of real property contained in said will, and that she may in all other respects take such steps as may be deemed necessary to effectuate the terms of said will and to fully administer the estate of the said W. L. Harper.” The Clerk entered an order on the same day, granting the prayer of the petition.
    7. Estelle G. Harper, Executrix of the will of W. L. Harper, executed a deed on 5 January, 1950, sufficient in form to convey the undivided one-third interest in the 190 acre tract to the plaintiff, Odell B. Doub, in fee simple. The deed was made pursuant to a private sale, and the consideration for it was $3,333.33.
    8. The plaintiffs brought this action against the defendants on 27 December, 1950, alleging in specific detail that the plaintiff Odell B. Doub acquired an indefeasible title to the undivided one-third interest in the 190 acres under the deed of 5 January, 1950, and that the defendants make unfounded claims to estates in such property adverse to him. The plaintiffs pray judgment quieting the title of the plaintiff, Odell B. Doub, as against such unfounded adverse claims. The defendants, Andrew Blaine Harper and Elizabeth Simpson Harper, suffered judgment to be taken against them without answer. But the other defendants filed an answer through their guardian ad litem, "William S. Mitchell, admitting that they claim estates in the property in question adverse to the plaintiff, Odell B. Doub, under the will of W. L. Harper, and alleging in specific detail that the deed of 5 January, 1950, is void because the testamentary power of sale conferred on Estelle G. Harper, Executrix, by the will of W. L. Harper terminated on 5 May, 1938, when the personal estate of the testator was finally settled. The answering defendants seek a cancellation of the deed.
    When the cause came on for hearing, the plaintiffs and the answering defendants waived trial by jury under G.S. 1-184. After hearing the testimony presented by the parties, the presiding judge made findings conforming to the facts set forth above, concluded as a matter of law thereon that Estelle G. Harper, as Executrix, had no power under the will of W. L. Harper to convey the property in controversy to the plaintiff, Odell B. Doub, and entered judgment canceling the deed of 5 January, 1950. Tbe plaintiffs excepted and appealed, assigning tbe conclusion of law and judgment as error.
    
      E. M. Whitman for plaintiffs, appellants.
    
    
      William S. Mitchell for answering defendants, appellees.
    
   EeviN, J.

Tbe appeal presents tbis single question for determination: Did Estelle Gf. Harper, Executrix of tbe 'Will of W. L. Harper, have testamentary authority on 5 January, 1950, to sell tbe undivided one-tbird interest in tbe 190 acre tract to tbe plaintiff, Odell B. Doub ?

These legal principals are pertinent to tbis inquiry:

1. A testator may confer on bis executor by bis will tbe power to sell bis real property for any lawful purpose to which tbe testator wishes tbe proceeds of bis real property to be applied. Powell v. Timber Corp., 193 N.C. 794, 138 S.E. 161; Trogden v. Williams, 144 N.C. 192, 56 S.E. 865, 10 L.R.A. (N.S.) 867; Johnson v. Johnson, 108 N.C. 619, 13 S.E. 183; Beam v. Jennings, 89 N.C. 451; Ferebee v. Procter, 19 N.C. 439.

2. A testamentary power to sell real property generally continues as long as there remains an unfulfilled object or purpose of tbe testator in aid of which it was intended that tbe power should or might be exercised. 33 C.J.S., Executors and Administrators, section 278; Foley v. Devine, 95 N. J. Eq. 473, 123 A. 248; Crozer v. Green, 298 Pa. 438, 148 A. 506.

3. Whether a testamentary power to sell real property extends beyond tbe period that tbe executor is to perform bis ordinary legal duties in settling tbe personal estate depends on tbe intenti'on of tbe testator as expressed in tbe will. 33 C.J.S., Executors and Administrators, section 278; Sharpe v. Ogle, 138 Md. 10, 113 A. 340.

Tbe court below adjudged that Estelle G-. Harper, Executrix of tbe Will of W. L. Harper, did not have testamentary authority to make tbe sale in controversy. Although tbe judgment does not ascribe any reason for tbis decision, it is evident that tbe trial court concluded that tbe testator conferred tbe power of sale on bis executrix by tbe third item of bis will merely to facilitate her performance of her ordinary legal duties in collecting bis assets, paying bis debts and settling bis personal estate, and that consequently tbe power of sale terminated on 5 May, 1938, when she filed a final account showing tbe completion of these ordinary legal tasks.

Candor compels tbe confession that tbe provision of tbe third item giving tbe executrix power to sell “any and all property” of tbe testator “during its administration or confirmation” undoubtedly lends color to tbis construction of tbe will. Nevertheless, such construction clearly conflicts with tbe evident intent and purpose of tbe testator when due heed is paid to everything witbin tbe “four corners of tbe instrument.” Williams v. Rand, 223 N.C. 734, 28 S.E. 2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. When tbis is done, it becomes apparent tbat tbe testator did not use tbe words “during its administration or confirmation” to indicate tbe time required by bis executrix to discharge ber ordinary legal duties of collecting bis assets, paying bis debts, and settling bis personal estate, but tbat be employed tbem to define tbe period in wbicb bis will committed tbe management of bis entire property to bis widow, Estelle G. Harper, either in ber fiduciary capacity as executrix or in ber individual character as tbe primary object of bis bounty.

A consideration of all tbe provisions of tbe will discloses tbe dominant purpose of tbe testator to devote tbe entire income from all bis property to tbe support of bis widow until she dies or remarries. To tbis end, be gives ber all of bis estate, both real and personal, for life or during widowhood. Moreover, be confers on bis executrix tbe express power to sell, exchange, invest, and reinvest “any and all property” of bis estate. Even tbe caviler cannot contend tbat tbe power to exchange, invest, and reinvest tbe real property of tbe testator is related in any way to tbe ordinary duties of bis executrix to collect bis assets, pay bis debts, and settle bis personal estate. Tbe grant of such power by tbe testator to bis executrix manifests tbe deliberate intention on bis part to have bis estate actually yield an income to bis widow during tbe time she is entitled to enjoy it.

These things being true, it necessarily follows that the testator intended tbat tbe power of bis executrix to sell, exchange, invest, and reinvest bis property should not terminate at the settlement of bis personal estate, but should continue until tbe death or remarriage of bis widow. Inasmuch as the object or purpose of tbe testator to have bis estate yield income to bis widow throughout ber life or widowhood bad not been fulfilled on 5 January, 1950, bis executrix had authority under bis will to sell tbe property in question to the plaintiff, Odell B. Doub, and to invest the proceeds of tbe sale in other property, so tbat the widow might use such other property or the income arising thereon until ber death or remarriage. It is noted here that tbe will explicitly empowers tbe executrix “to sell real estate ... at private sale and to convey tbe same by such deeds or other instruments of conveyance as may be necessary to transfer legal title thereto.”

In reaching tbe conclusion tbat tbe executrix bad power to make a valid sale of tbe realty in question on 5 January, 1950, we have not overlooked tbe fact tbat she filed a final account on 5 May, 1938, showing that she had fully administered upon tbe personal estate, or tbe further fact that the Clerk of the Superior Court entered an order on that day approving such final account and purporting to discharge the executrix.

Manifestly, an executor does not abrogate a testamentary provision giving Mm power to sell tbe realty of bis testator after completion of tbe administration of tbe personal estate by making a final settlement of tbe personal estate. Sharpe v. Ogle, supra. Moreover, neither tbe final account of an executor nor an order of tbe probate court approving it is operative as to matters not included or necessarily involved in tbe account. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562. Furthermore, an order of discharge made by the probate court on a final accounting by an executor cannot do more in any event than discharge the executor from liability for the past. It does not destroy the executorship, or revoke an unexecuted power of sale conferred on the executor by the will. Starr v. Willoughby, 218 Ill. 485, 75 N.E. 1029, 2 L.R.A. (N.S.) 623. Hence, neither the final account nor the order of the Clerk deprived tbe executrix of tbe power conferred upon ber by tbe will to sell the real estate in question.

There is no impropriety in the order made by the Clerk on 4 January, 1950. In re Trust Co., 210 N.C. 385, 186 S.E. 510.

For the reasons given, the judgment canceling tbe deed of 5 January, 1950, is set aside, and tbe cause is remanded to the Superior Court of Forsyth County with directions that it enter a decree on the facts found adjudging such deed to be valid and quieting the title of the plaintiff, Odell B. Doub, to the property in controversy as against tbe adverse claims of tbe answering defendants.

Error and remanded.  