Smith v. Floyd

By a will made December 27, 1852, the testator, William Smith, gave his entire real estate to his only son, Egbert T. Smith, during life, adding the following provision : “ With the right and privilege of disposing of the same by will or devise to his children, if any he should have, and in case he should die without leaving any children, lawfully begotten, then and in that case I give and devise the same to the children of my daughter Lydia, to them, their heirs and assigns forever.”

The plaintiffs are the children of the son, and while the date of their birth is not very material, it appears from the appellant’s brief that they were in esse at the time of the execution of the will. The testator died in 1857, and the son in 1889, without having exercised the power given him to devise the real property to 1ns children. The appellant is the only daughter of the testator, and claims that by the failure of the son to execute the power the testator died intestate as to his real property, and that an equal undivided half of it has become vested in her as one of his heirs at law; and the validity of her claim is the sole question involved in this appeal. It is not disputed that the authority given to the son to dispose of the estate in remainder to his children constituted a valid trust power. It would have been so regarded under the equitable rules controlling the enforcement of powers, before the adoption of the revised statutes; and it fulfills with exactness the definition of a special power in trust embodied in section 95 of the article on powers. (4 R. S. [8th ed.] pp. 2447-8.) But the donee of the power died without executing it, and it thus becomes important to determine whether the execution of it was imperative or only discretionary. If the former, equity will regard that as done which the trustee should have done,.

The eminent counsel for the appellant, however, contends that by the language employed in the creation of the power, the testator has expressly declared, or at least clearly indicated, that its execution or non-execution was to be dependent upon the will of the donee. It is insisted that the words “ right ” and “ privilege ” necessarily import a discretion. Such may be their signification generally, but not when used for the purpose of creating a trust power. If the testator had said that he authorized and empowered his son to devise the property to his children, it cannot be doubted that an imperative trust

There are forcible reasons why testamentary powers should be so construed. They are a part of the final act of the owner in ordering a distribution of his estate, which is not to be effectual until after his death. The testator’s wish is his will, and expressions, which, in other instruments, might not be regarded as a command, are, under such circumstances, obligatory. As was said by the learned judge who wrote in Dominick v. Sayre (3 Sand. 555), and who was one of the framers of the statute under consideration : “Words of mere authority have the same efficacy in creating a trust as a positive direction. The words, in their ordinary acceptation, may be discretionary, but in a court of equity are mandatory.” In all such cases, the permission imports a power; the power implies a trust; and the trust imposes a duty. It is analogous to the rule of construction which has been applied where the legislature has by statute declared that a public officer “may” do an act, which, if done, will result in a benefit to an individual or to the public. The authority thus conferred is mandatory and its exercise can be compelled, although the language is in form permissive and not imperative.

But it is objected that in this view of the rights of the grandchildren, no good reason can be shown why the testator should have created the power at all, as the property must go to them in equal shares, whether it was executed or not. It is suggested that a direct devise of the remainder to the chil

The entire testamentary scheme is in harmony with this construction of the power given to the son. When its different provisions are considered, the conclusion cannot he avoided that the testator intended to give the remainder in the real estate to the son’s children if he should leave any surviving him. There is no gift over of the remainder in case the life tenant failed to exercise the power, and there is a gift over in case he died without leaving children surviving him. This raises a very strong presumption that he intended the children, if there were any, should have the property upon the death of their father, which, in the absence of words expressly rebutting it, would ordinarily be deemed conclusive upon the question of the character of the power granted. There is, in addition, the legal inference against partial intestacy, which must have its due weight. The will assumes to deal with his entire estate, and the authorities are numerous that under such circumstances a construction of its provisions will not be adopted, which will leave a part of the property undisposed of, if, by any reasonable interpretation of its language, it can be avoided. It is also apparent that the distinctive feature of his scheme was a division of his estate between the son and the daughter and their respective families so that the one should take the realty and the other the personalty. After making suitable provision for his widow, and giving some unimportant specific legacies, he bequeaths his entire personal

The judgment and order appealed from must be affirmed, with costs.

All concur.

Judgment affirmed.