Barnard v. Moore

• Decision Date: 01 May 1922
• Docket Number: 10059.
• Citation: 71 Colo. 401,207 P. 332
• Parties: BARNARD v. MOORE et al.
• Court: Colorado Supreme Court

207 P. 332

71 Colo. 401

BARNARD v. MOORE et al.

No. 10059.

Supreme Court of Colorado

May 1, 1922

Rehearing Denied June 5, 1922.

Error to District Court, Montrose County; Thomas J. Black, judge.

Action by Mabel Moore Barnard against James A. Moore and another.Judgment for defendants, and plaintiff brings error.

Reversed and remanded.

Catlin & Blake, of Montrose, for plaintiff in error.

Adair J. Hotchkiss and Millard Fairlamb, both of Delta, for defendants in error.

DENISON J.

Moore by the eighth clause of his will, devised land to his wife for life, remainder to his five sons and daughter 'in fee simple,' with a condition that if any son or daughter should die before the widow, then 'the share of such child shall pass to the heirs of such child.'Said eighth clause contained the following:

'In the event my wife shall desire to sell said place during her lifetime, the proceeds of such sale shall be at once freed from her life estate hereinbefore devised, and shall be equally divided between my five sons and Ida V. Prickett[the daughter] and none other.'

After the testator's death the widow executed a quitclaim to the six remaindermen, in which she referred to the said eighth clause, but not expressly to the power; thereafter L. Wiley Moore, one of the sons, conveyed his one-sixth interest to his brother and cotenant, James A. Moore, by a deed of bargain and sale without warranty.L. Wiley Moore then died.The widow is still living.Plaintiff in error was plaintiff below, and is daughter and sole heir of L. Wiley Moore, and claims one-sixth of the said land by virtue of said will.A demurrer to her complaint was sustained.She asked to amend by alleging that the widow did not intend by the quitclaim deed to execute the power, but her request was denied, and judgment was rendered against her.

All agree that the will gave to the widow a life estate only.

The plaintiff in error claims: (1) That the power was to sell the life estate only; (2) that the power, if to sell the fee, was never exercised; (3) that the power, if to sell the fee, was to sell it only and distribute the proceeds to the remaindermen, not to convey to them; (4) that the sons and daughter by the terms of the will each took a determinable fee in remainder in one-sixth of the property, determinable on his or her death before the mother; (5) that by the will the heir of such son took one-sixth by executory devise; (6) that, therefore, neither the deed of the widow nor that of her father could or did pass the interest of the plaintiff; and so upon his death before his mother it passed to plaintiff.

Defendant in error, on the other hand, claims: (1) That the power was to sell the whole estate; (2) that that power was exercised; (3) that the conveyance to the remaindermen was a substantial and proper exercise of the power; (4) that the sons and daughter, by the rule in Shelley's Case, took a vested remainder in fee simple absolute; (5) that if the widow's deed conveyed but a life estate yet by acceleration the grantees took a fee; (6) that therefore these remaindermen owned a fee simple absolute, and, plaintiff having no claim but by inheritance, is cut off by her father's deed to James A. Moore.

1.It will be convenient first to consider the above sentence granting a power.The defendant in error claims that it grants power to sell the fee, and to this we agree.The intention is clear.She may sell 'the place,' and the common understanding of these words is to sell the whole title.The proceeds are to be 'freed from her life estate.'It is not reasonable to suppose that the testator meant to say that the proceeds of a sale of the life estate were to be 'freed' from the life estate.How could they be otherwise?Henderson v. Blackburn, 104 Ill. 227, 44 Am.Rep. 780.Then, too, there was no occasion to grant power to sell the life estate.

2.A more difficult question is whether the widow, by her deed above mentioned, conveyed the fee or only her life estate.We think only the life estate.The deed, in the ordinary quitclaim form, purports to convey, not the land, but all her right, title, and interest therein, if any.Valle v. Clemens, 18 Mo. 486, 489;Gibson v. Choteau's Heirs, 39 Mo. 536, 566;Bruce v. Luke, 9 Kan. 201, 12 Am.Rep. 491;Frink et al. v. Darst, 14 Ill. 304, 58 Am.Dec. 575;Van Rensselear v. Kearney, 11 How. 297, 322, 13 L.Ed. 703.A power to convey creates, in the donee thereof, no right, title, or interest in the premises to be conveyed.Russell v. Russell, 36 N.Y. 581, 93 Am.Dec. 540;21 R.C.L. 772-3.Her only right, title, or interest, then, was an estate for life; therefore she conveyed nothing more, unless, elsewhere in the deed, it appears that she intended to exercise the power.After the description and before the habendum is the following:

'The intention being to grant, bargain, sell and convey to the parties of the second part all right, title and interest of the party of the first part in and to the above-described premises by virtue of the last will and testament of Thomas M. Moore, deceased, more particularly the eighth paragraph thereof.'

If this shows an intention to execute the power the fee passed.

A reference to the power is usually considered a sufficient indication of intent to use it, but it should be noticed that the grantor does not refer in plain terms to the power granted by the will, but only to the eighth paragraph and to all her 'right, title and interest * * * in and to the above-described premises.'

It seems that a deed containing no reference to the power will not be regarded as an exercise thereof, unless otherwise there would be nothing for the conveyance to operate on.Mutual Life Ins. Co. v. Shipman, 119 N.Y. 324, 24 N.E. 177;Towle v. Ewing, 23 Wis. 336, 99 Am.Dec. 179; Sugden on Powers 477 (3d Am. Ed.);4 KentCom. 371.SeeBradley v. Westcott, 13 Ves. Jr. 447.

There are cases which go to the length of holding that a clause much like that above quoted is a reference to the power sufficient to indicate intent to exercise it (Goff v. Pensenhafer, 190 Ill. 200, 60 N.E. 110); but we cannot so construe this clause.The grantor, on the contrary, indicates an intent not to use the power, because, carefully using apt words to convey her interest only, she as carefully refrains from mentioning either any other interest or the power.It is, to say the least, an unusual method of expression for her to say that she intends to grant, bargain, sell and convey her right, title, and interest when she means to exercise a power to convey rights, titles, and interests of others.The obvious and natural thing to do, if Mrs. Moore intended to exercise the power, was to say so, and to convey the fee the least she could do was to make a deed, as Wiley did, not limited in terms to the interest she had.Our conclusion on this point is that the widow conveyed her life estate and no more.

3.That conclusion makes it unnecessary to consider whether a conveyance to the remaindermen by virtue of the power would have been a proper exercise thereof.

4.Did the sons and daughter, under the rule in Shelley's Case, take a fee simple absolute?We think not.We shall assume, without deciding, that the rule in Shelley's Case is in force in Colorado; i. e., if a freehold estate be limited to A., remainder to his heirs, he takes a fee simple and so can convey the whole estate free from claims by his heirs.Do the facts bring this case within that rule?No.It is the use of the word 'heirs' that brings the rule in Shelley's Case into action.The word may be used as a word of limitation, as in ordinary deeds, or as a word of purchase.2 Und. on W. §§ 602,608;40 Cyc. 1398.

If it is regarded as a word of limitation the heir takes by inheritance; if as a word of designation or descriptio personae, he takes by purchase; i. e., by force of the will.

We are unable to reconcile the cases or to construct a workable rule from them.On the one hand, it is said that the rule is one of property and not of construction.It follows that the intention of the testator is immaterial, and many cases so hold.On the other hand, it is said that if the context shows that the word 'heirs' was used as a word of purchase, the rule does not take effect.'Used as a word of purchase' means used with that intent, and means nothing else.It follows that the intention of the testator in the use of the word is material.How he used it depends on his intention.It follows then that his intention is conclusive.With the intent the case goes one way, without it the other.If his intention is conclusive (of course we refer to his intention as revealed by the will) the question is wholly one of construction, and the rule as a rule of property is abrogated.

The probable explanation of this conflict is that, since the real reason for the rule has disappeared with the feudal system of tenures, the courts seek ways to avoid the injustice of attaching to a deed or will an effect contrary to its expressed intent.For that same reason we are not willing to ignore such cases as authority and revert to the unqualified doctrine that the word 'heirs' with whatever intent used must import a fee simple.If by the word 'heirs' the testator meant to indicate the persons who, upon the fulfillment of the condition, should take the land, it must be said that they take by...