Barbot v. Thompson

• Decision Date: 15 March 1913
• Citation: 94 S.C. 3,77 S.E. 716
• Parties: BARBOT. v. THOMPSON.
• Court: South Carolina Supreme Court

77 S.E. 716

94 S.C. 3

BARBOT.

v.THOMPSON.

Supreme Court of South Carolina.

March 15, 1913.

1: Powers (§ 33^*)—Execution —Construction of Instrument of Execution.

Where a deed of trust provided that the survivor of the cestuis que trust might grant and convey the land by deed or devise it by will to such persons and in such manner as she might appoint, and provided for its disposition if she died without deed or will executed as therein provided, a provision of the will of such survivor, who owned no other real estate, directing her executor to sell all of her estate, real and personal, except personalty otherwise disposed of, and to make and execute titles for the real estate to the purchaser, containing no reference to the trust deed, was a sufficient execution of the power; and hence the executor could transfer a good title, since the intention to execute the power was clear and apparent, the will not susceptible of any other interpretation, and the provision for the sale of real estate would be utterly meaningless unless held to constitute an execution of the power.

[E4. Note.—For other cases, see Powers, Cent. Dig. §§ 110-120; Dec. Dig. § 33;* Deeds, Cent. Dig. § 406.]

2. Executors and Administrators (§ 129*)— Devise of Fee—Implication — Power to Sell.

Where a will, without making any specific devise of real estate to the executor, directed the executor to sell it and to make and execute titles to the purchaser, he was by implication vested with the fee.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 533-636; Dec. Dig. § 129.*]

Appeal from Common Pleas Circuit Court of Dorchester County; H. F. Rice, Judge.

Submission of controversy without action by Decimus C. Barbot, as executor of Christina P. Le Bleux, against Fannie B. Thompson. From a decree for plaintiff, defendant appeals. Affirmed.

The circuit court decree mentioned in the opinion was as follows:

"The above-stated matter is a controversy without action submitted to me at the October, 1912, term of the court of common pleas for Dorchester county.

"It appears from the recitals in the moving papers that the plaintiff contracted to sell to the defendant, for the sum of $3,100 in cash, a certain tract or parcel of land in said county containing 215 acres, more or less, more particularly described in the said moving papers. It further appears that in 1866 one Henry Bulwinkle by deed conveyed the said tract, along with several other tracts, to one Louis F. Le Bleux, subject to certain uses and trust as follows: 'In trust nevertheless, to and for the joint use, benefit, and behoof of the said Louis F. and Christina Le Bleux for and during the full end and term of their natural lives not subject to any future debts, contracts, liabilities, and engagements of the said Louis F. Should the said Christina survive her husband, the said Louis F., in such case power and authority is given unto her to grant and convey by deed, or devise by last will and testament, the aforesaid estate to such persons and in such manner as she may appoint. Upon the death of the survivor without deed or last will and testament executed as herein before provided for, the estate to be held and enjoyed by Mrs. Anna L. Le Bleux for and during the full end and term of her natural life, and after her death and the death of Louis and Christina the remainder of the estate to be then equally divided between the children of John Chartrand and Phillip Chartrand living at the death of the survivor of them, their heirs and assigns forever.'

"Christina P. Le Bleux survived her husband and Mrs. Anna L. Le Bleux, and thereafter departed this life, leaving of force her last will and testament, in which, after several bequests of personalty, she provides: '3rd. It is my will that my executor herein named shall sell at public or private sale all the rest of my estate, real and personal, not herein specifically bequeathed or reserved, at such times and places in this state, and upon such terms as he may deem proper; and he shall have full power to make and ex-ecute titles for the real estate to the pur-chaser.' The testatrix then provides how the moneys 'derived from the sales by the ex-ecutor shall be disposed of. A part of the corpus is to be paid to certain persons named, and a part thereof is to be invested by the executor and the interest paid by himto certain other persons, until certain contingencies occur, when the whole of the remainder of the corpus of the said funds are to he paid over by the executor to certain parties named by the testatrix. D. C. Bar-bot, the plaintiff, was named as executor, and duly qualified. The will was duly probated.

"The said Decimus C. Barbot has duly tendered to the defendant a title from himself as executor of the said will, conveying to her in fee simple the said tract of land for the consideration of $3,100, but she refused, and still refuses, to accept the title so tendered her, or to pay the said purchase money, claiming that the title is unmarketable for several reasons, which, in brief, amount to this, viz.: That the provisions of the will of the said Christina P. Le Bleux do not constitute an exercise of the power of disposition conferred upon her as to the said realty by the terms of the said deed of ...