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p. 416Doe, on the demise of George M. Davis, v. James Vincent, Tenant in possession.
Headnote
The testator, hy his will, devised all his lands to his wife during widowhood, with authority to cut timber, and use the land as she saw proper, and to sell and convey any part of them, excepting not less than four hundred acres to the farm whereon he lived, which he willed not to be sold during her widowhood, or the minority of their youngest child. He also, in a subsequent item of his will, empowered her, by her last will and testament, to “ devise the estate, both real and personal, to their children or their proper heirs, as she might deem right and equal in her best judgment, which should be final.” Held, that this did not confer power on the wife to devise the four hundred acres in the home farm to her executors to be rented during the minority of the youngest child, and then to be sold by them, and converted into money, to be invested for the benefit of the children.The intention to execute a delegated power must appear in the execution of it, either by a reference to the power itself, or to the subject-matter of it, in a way to leave no doubt of the intention to execute the power.
This was an action of ejectment, brought by George M. Davis, the plaintiff, to recover the one undivided fourth part of four hundred acres of land, situate in Northwest Fork Hundred. John Goslin, by his last will and testament, devised the tract in question as follows: “T give and bequeath to my beloved wife, Hester Goslin, all my lands, during the term of her widowhood and no longer, and I
p. 417
further give to her the right and privilege of using the same as her own in every respe'et during said term, to cut and clear all or any of the lands within the present inclosure or elsewhere, as she may, in her judgment, deem proper, and to cut and get rails and bark or any other wood or timber, and to sell the same to defray expenses of improvement, or to pay debts due upon the estate until the estate is finally settled. And I further give to her the right and power, that at any time she may sell all or any part of my lands or rights of lands in or out of the State, that she may deem proper, and make a good and sufficient deed of title to the same fully and effectually, excepting not less than four hundred acres of land to the home farm where I now live, which I will not to be sold during her term, or the minority of our youngest child. I further give and bequeath to my beloved wife, Hester Goslin, all my personal estate of every kind, after the payment of all my just debts and burial expenses, during the term of her widowhood, and she may give off to any of the children at any time in case of need or marriage, any part of the estate she may deem proper, either real or personal, and I devise to her the right that she may, in her last will and testament, devise the estate, both real and personal, to our children or their proper heirs, as she may deem right and equal in her best judgment, which shall be final.” The testator, John Goslin, died, leaving to survive him his widow, Hester Goslin, and four children, the eldest of whom, Ann Eliza Goslin, afterwards intermarried with the plaintiff. Hester Goslin, the widow and devisee, continued in possession of the land, up to her death, in November, 1852, having made her last will and testament, wherein she devised among other things as follows : “ Item fourth. It is my will and desire that my real estate, comprising about four hundred acres, shall, after my decease, be rented out by my executors hereinafter named, to a good tenant or tenants, until my youngest daughter, Hester Lavinia, shall arrive at the age of twenty-one years, and the net rents and profits be divided annually and equally between my four children,
p. 418
Ann Eliza, Mary Catharine, Sarah Emma, and Hester Lavinia, and paid over by my executors to them respeclively. Item fifth. My will and desire is, that as soon'as my dear daughter, Hester Lavinia, shall arrive at the age of twenty-one years, my executors hereinafter named shall advertise and sell at public sale all my real estate, on a credit of one, two, three, and four years, in equal annual payments, with interest on the whole unpaid sum annually, secured by -bond and ample security, and payable as follows : the first bond and interest to my daughter, Hester Lavinia; the second bond and interest at two years to my daughter, Sarah Emma; the third bond and interest at three years to my-daughter, Mary Catharine; and the l,ast and fourth bond and interest at four years to my executor hereinafter named, as trustee for my daughter, Ann Eliza, the interest of which to be paid over to her, independent of her husband; annually by the said trustee, and should the said bond mature, and be paid over to the said trustee in the lifetime of my said daughter Ann Eliza, then the said trustee shall, without delay, invest or loan out the same, in his name as trustee, on interest, and the sums accruing thereon to be paid over annually to her, independent of her husband, by said trustee; but at the death of my s^id daughter Ann Eliza, the trusteeship shall cease, and the said bond, rights, or effects by this will arising out of the sale of my personal or real estate, whether in the hands of my said executors or in that of the trustee, .shall pass to and belong to my said daughters who shall survive her, them and their heirs, in equal proportions,” &c. The executors named in the will took upon themselves the execution of it, ■ and executed a lease of the premises to the defendant, the tenant in possession. On the 23d of July, 1853, George M. Davis and Ann Eliza his wife, the plaintiffs, by deed of bargain and sale, sold and conveyed all their undivided estate; right, title, and interest in the premises, to John Redden, who shortly afterward, by his deed of bargain and sale, reconveyed the same to the plaintiff, who afterwards made a formal demand of the defendant to
p. 419Under the will of her husband, John Goslin, Hester Goslin,-his widow, had no right to dispose of the land as she has attempted to do in this instance, and has manifestly exceeded the power and authority conferred upon her by it. By his will she had but an estate in the premises during her widowhood, without impeachment of waste, with authority to herself alone, during her widowhood, to sell and convey, by good and sufficient deed, any portion of his real estate she might deem proper, except ting not less than four hundred' acres of land to the home farm belonging, and to give off during that period any part of it she might think proper in case of need or marriage, to any of the children, and with the right and power also to devise the same, by her last will and testament, to their children and their heirs, as she might deem right and equal according to her best judgment, which was to be final and conclusive as a disposition of the property. Under the will of her husband, Mrs. Goslin had no authority to sell these lands after the determination of her widowhood, or to direct this real estate after her death to be either rented or sold and converted into personal property, by her executors, or any one else. It is ti;ue that she had the power conferred upon her by his will, to sell any of his land during her widowhood, excepting these four hundred acres, and with a special and limited authority during that time to give any part, even of this tract, to any of the children in case of need or marriage, and also by her will at her death to devise it to their children and their heirs, as she might deem right and equal, that is to say, in such proportions as she might consider just and proper. But there was nothing in the will to warrant such a disposition of it by her after her
"be let into possession of the premises, and the defendant refusing to admit him, this action was instituted. A receipt from Davis and his wife to one of the executors, for her share of the rent of the premises for the year 1858, was produced, proved, and put in evidence on the trial.
W. Saulsbury, for the plaintiff:
p. 420death, as she has attempted by the devise in question— nothing to warrant her in directing it to be rented out until the youngest child attained the age of twenty-one years, much less after that to warrant her executors in selling this real estate, which he was careful to preclude even her from selling in her lifetime, and converting it into money, to be secured and invested and unequally paid and distributed in the manner directed in her last will and testament. Hot having the power herself in her lifetime to sell this land, and not having the power by the will of her husband to direct, by her own will after her death, that it should either be sold or rented out as she has indicated, it is clear that she could not confer that power upon her executors, or any other person; for even if the power to sell this tract had been conferred on her, she could not have delegated it to another, because a delegated power cannot be delegated. The question then arises, has Mrs. G-oslin by her last will and testament duly executed the powers delegated to her by the will of her husband ? On the contrary, is it not apparent from a comparison of the two instruments that she has clearly transcended in these respects the authority and powers conferred upon her for any purpose either expressed or implied in it ? If so, the devise in her will to her executors with directions to rent these four hundred acres until her youngest daughter, Hester Lavinia, should arrive at the age of twenty-one years, and then to sell the same at public sale to the highest purchaser, and to convert the whole of it into personalty, is clearly inoperative and void, and the lease of the executors under which the defendant claims to retain the possession of the premises is a nullity. There was another objection to her will in this respect, to which he would advert in his opening. It is a maxim of law that if a party possessing a power does not attempt or indicate a purpose to pursue it, he must be held to repudiate and renounce the power. How in this case, it would be observed in reading over the will of Mrs. Goslin,
p. 421that she makes no allusion whatever to the will of her hus.band, or to the powers conferred upon her by it, but everywhere speaks of these four hundred acres as “ my land,” without any reference to the source from whence she derived her limited title to them, or to her specially delegated power of devising them, but proceeds to dispose of them precisely as if they were her own absolute property; thus manifesting an intention on the face of her will to pay no attention to the power delegated to her for this purpose, but to devise them as her own altogether independently of it. "Under the will of John Goslin, Hester Goslin, his widow, who did not marry again, took an estate for life in the four hundred acres of land in question, which was the only real estate of which he died seized, with a power to devise the same to be rented until the youngest child arrived at age, and after that to be sold, and to appoint the proceeds of the sale among the four children, as she might deem right and equal according to her own judgment and discretion; and if such was the case, then her will was a good and valid execution of the powers conferred upon her by him. To ascertain the meaning of the testator, the whole will must be taken and construed together. Adopting this rule, we find the general intent of the testator to be, in the first place, to invest his wife after his death and during her widowhood with a large discretion over his real and personal estate, even to the power of selling, during her widowhood, any or all of his real estate, “ excepting not less than four hundred acres of land to the home farm, where he then lived, which he directed should not be sold during her term, or the minority of their youngest child.” These are the words of the testator, excepting the particular tract in question from the general operation of the devise and the power conferred for a time merely, and which he directed “not to be sold” during the widowhood of his wife or the minority of their youngest child. And after
Robinson, for the defendant:
p. 422prescribing this limitation of time within which this particular tract should not be sold, he proceeds, in the second item of the will, to give Mrs. Goslin full power and authority, during her widowhood, to bestow any part of his estate, either real or personal, in case of need or marriage, on any of their children, and at her death, to devise the estate, both real and personal, by her last will and testament, to their children and their heirs, as she might deem proper. On this latter point the words of {he will are, “ And I devise to her the right, that she may in her last will and testament devise the estate, both real and personal, to our children or their proper heirs, as she may deem right and equal in her best judgment, which shall be final.” Well now, taking all these provisions together, and particularly with the comprehensive power and general discretion delegated in the last clause read, do they not indicate an evident intention on his part to authorize and empower her, by her last will after her death, and when she had ceased, to be their guardian and protector, to'dispose of these premises in any manner which she might deem best for the future provision and welfare of their children, all of whom were daughters ? It is manifest that Mrs. Goslin so understood the Avill of her husband, and it was for this reason, construing the provisions of the will altogether, so as to preserve the particular as well as the general intent of it, 'that she directed in her own will that thesp four hundred acres should not be sold, but should be rented out during the minority of their youngest child. But she conceived that after .that the limitation on the sale of it, prescribed by the Avill of. her husband, would expire, and that she might then by her last will and testament direct it to be sold, if she deemed it best for the interest of their children, without violating the intention of her husband, or exceeding the ample power and discretion vested in her for that purpose. , > Powers are but modifications of estates in land, and are governed by the general intent of the testator. Doug. 573; 3 Burr. 1446; Comp. 266; 1 Pr. Wms. 149; 3 East, 441; 2
p. 423But there is another matter to which the attention of the Court should be directed, and that was the fact proved, that Davis and his wife had accepted and received, in 1853, their share of the rent of these premises accruing on ithe lease from the executors to the defendant, which was an acknowledgment on their part of the rightful and lawful tenancy of the defendant, which would entitle him to due and written notice before it could be determined, and without which the plaintiff was not entitled to recover.
Burr. 1146; 10 East, 436; 1 Sug. on Powers, 357; 1 Taunt. 289; Adams on Ejectm. 83. And no particular form of words is necessary to create a power of sale, for it is sufficient if there he an apt" instrument, a proper object of the power, and the intention is manifest. 1 Sug. on Powers, 117, 184, 415; 3 Ves. Jr. 513; 4 Kent’s Com. 319. A power to appoint the land is well executed by a devise of the land to be sold, and an appointment of the proceeds of the sale. 6 Ves. 797; 2 Vern. 86; Eq. Cases, 68; 5 Ves. 445; 1 Sug. on Powers, 405. And a devise of the rents and profits or the proceeds of the sale of land, is a devise of the land itself. 22 Eng. C. L. R. 19; 4 Kent’s Com. 536; 2 Harr. Rep. 19 . If, then, the powers delegated to Mrs. G-oslin by the will of her husband were not transcended, but were properly executed by her in her own will, within the meaning and intention of her husband, the devise to her executors to rent the land during the minority of her youngest daughter and afterwards to sell the same is good, and the legal estate is vested in them as trustees for these purposes, and it was not competent for the plaintiff and his wife by their deed of bargain and sale to Redden to divest that estate, but the same is still in the trustees, and the lease is binding on all the cesluis que trust, and the possession of the defendant is entirely lawful, and must prevail in the present action.
Mr. Saulsbury replied.
And to afford the Court an opportunity to consider of the question, a verdict was taken for the plaintiff, by the consent of counsel, subject to the
p. 424opinion of the Court as to his right to recover, with leave to the defendant to move to ■ set it aside, if the opinion should be in his favor.
now announced the opinion of the Court.
From the consideration which we have been enabled tq give to the questions presented in this case, it is the opinion of the Court that the plaintiff is entitled to recover, and that the verdict should not be disturbed which has been returned in his favor.
The receipt from Davis and his wife to Kinder, one of the executors of Mrs. Goslin, for their share of the rent of the premises in 1853, paid over by the defendant to the executors under whom he leased the land, in the judgment of the Court is no bar to this action. For if Mrs. Goslin had nOxauthority; under the will of her husband, John Goslin (which we think she had not), to devise these lands by hew last will and testament to her executors to be rented by them after her death, during the minority of the youngest child, and on her arrival at age to be sold by them, as directed in her will, then no receipt by the plaintiff, or plaintiff and wife, to the executors, on account of rent paid or delivered by the defendant to them as his landlords, can cure the defect or remedy the deficiency in her power for that purpose, or defeat the legal title and right of the plaintiffs to recover in this suit. If Mrs. Goslin had not the power under the will of her husband to make such a devise of the premises in question, no admissions in pais of the plaintiff could give her that authority, or enlarge the operation of the power conferred upon her, so as to bar him of his right to recover under the evidence adduced in this case; for that must depend upon the will of her husband when properly considered and construed, and not on the subsequent acts and acknowledgments of the parties interested, such as were put in evidence on the trial.
We do not think, if Mrs. Goslin had possessed the power under the will of her husband to sell these lands during her widowhood (and which she had not), that she could1
p. 425
have delegated that power to her executors after her death, even if she could have delegated the power to another during widowhood, the general maxim on this subject being delegatus non potest delegare. And although her husexpressly desires in his will that these' lands shall not be sold during the widowhood of his wife, or the minority of their youngest child, and notwithstanding he gives in the succeeding item of his will, the right to his wife by her last will and testament to devise the estate, real and personal, to their children or their lawful heirs, as she might deem equal and right in her best judgment, we do not consider that any power was delegated, by implication or otherwise, to Mrs. Q-oslin to devise these lands to her executors to be rented by them after her death and during the minority of their youngest daughter, and on her arrival at age to be sold by them, and the proceeds of the sale to be secured and paid over by them to their four daughters, as directed in the fifth item of her will. In the disposition which she has thus attempted to make of the land, we think she has transcended the limits of the power conferred upon her by the will 'of her husband, and this we regard as the main objection which has been taken to the appointment or execution of the power delegated to her. The will of her .husband authorizes her to devise “ the estate, both real and personal, to their children or their lawful heirs, as she might deem equal and right in her best judgment.” But this she has not done; for instead of devising the real estate to their children or their lawful heirs as real estate, she has devised it to other persons, first to be rented and afterwards to be sold by them and converted into personalty, and to be secured for the benefit of the daughters in such manner as others may deem sufficient, to be paid at unequal times, and in reference to the portion to be secured for the wife of the plaintiff, not to go to her or her lawful heirs, but to another, to be held in trust for her, the interest to be paid to her during life, independent of her husband, and after her death the principal to be paid over to the heirs of her body, &e. This, in the opinion of the Court,
p. 426
she had nbt the power to do under the will of her husband'; for the right to devise real estate to children as she might deem “ equal and right,” cannot by any principle of legitimate construction we knoiv of, be held to confer-the power to devise it to entire strangers, and to direct it to be converted into personalty by a sale to strangers, although the proceeds are to be secured to the children in such manner as she deemed proper. ’ The limitation referred to by the counsel for the defendant in the- first item of her husband’s will> which prescribes that the four hundred acres contained in his home farm should not be sold during the widowhood of his wife, or the minority of his youngest child, has a broader significance, we think, than he has given to it, and when properly considered will not sustain the inference which he has deduced from it, particularly when it is known that this was all the real estate he owned at the time of making his will. For it not only precluded the sale of it by his wife during that time, but also by any other power or authority whatever, and was more probably designed to prevent the sale and conversion of it into money by proceedings for partition or otherwise, and to retain it as real estate for his children, at all events, until the. youngest should attain the age of twenty-one years. The intention to confer .such a power as is claimed for the devisee in this instance ought to be clearly and unequivocally indicated, or expressed in the will, and should not de'pend dn an argumentative deduction, or be left to inference or presumption merely.
There was also another exception taken to the will of Mrs. G-oslin, in this connection, which we consider it proper. to.notice before-we conclude our opinion. We allude to the objection that it contains no reference whatever'in terms to the will of her husband, or to the right or power conferred upon her by it, or to the- subject-matter of the power, which' clearly and unequivocally indicates, without any doubt or uncertainty, an intention on her part to execute" the power delegated, or to act under the' will of her husband, in disposing as she has of the premises in contro
p. 427
versy. She nowhere refers to his will, or to the authority derived from it, in her own will, from the commencement to the close of it, or even to her husband himself, except in the directions which she gives for the erection of tombstones over his and her own graves, and for the interment of her own by the side of his remains. On the contrary, she invariably speaks in her will of the land as her own, and devises and disposes of it in the same manner and in the same language as if it belonged to her in her own right, and she could do with it as she pleased. We therefore cannot say that we are satisfied, in addition to the other objections raised to the execution of the power delegated, that it was the intention of Mrs. Goslin to execute it in the manner which her husband’s will required, and which intention must always appear in the execution of such a power, either by a reference to the power itself or by some relation to the subj ect-matter of it, in a way which can leave no doubt of the intention to execute the power.
The dispositions in the will of Mrs. Goslin not being, therefore, in conformity with the power conferred upon her by the will of her husband, the devise in question is inoperative and void, and the power having failed for the want of the proper execution of it, the premises in dispute became intestate property of the testator and descended to his heirs-at-law upon her death. The plaintiff is consequently entitled to recover, and the verdict must stand.