Campbell v. Fowler

• Decision Date: 19 June 1928
• Citation: 11 S.W.2d 423,226 Ky. 548
• Parties: CAMPBELL v. FOWLER et al.
• Court: Kentucky Court of Appeals

11 S.W.2d 423

226 Ky. 548

CAMPBELL v. FOWLER et al.

Court of Appeals of Kentucky

June 19, 1928

As Modified, on Denial of Rehearing, December 21, 1928.

Appeal from Circuit Court, McCracken County.

Action by John P. Campbell against Sanders A. Fowler and others. From an adverse judgment, plaintiff appeals. Affirmed.

Wheeler & Hughes, of Paducah, for appellant.

C. C Grassham, Eaton & Boyd, and W. A. Berry, all of Paducah, for appellees.

WILLIS J.

L. A Fowler died testate in August, 1878, survived by his widow Laura S. Fowler, and their two infant children, Sanders and Bertie. Bertie Fowler married John P. Campbell, and the appellant, John P. Campbell, is her only child. She died intestate after attaining the age of 21 years, and long after her death the widow, Laura S. Fowler, died.

The will of L. A. Fowler, dated July 1, 1878, contained these provisions:

"Second, I herein bequeath and devise to my beloved wife, Laura, all of my estate, both real and personal, held jointly with others and individually for the separate use of herself and my two children, Sanders and Bertie, with power in my said wife to sell and convey or dispose of any part of said property, and reinvest the same as she may deem for the best interest of the estate. * * *

Seventh, Should either or both of the children arrive at the age of twenty-one years before the death of my wife, it is my wish that my wife pay to said children as they respectively arrive at age, an interest to each, of one-third in all of the estate undisposed of. If one of the children should die before said children arrive at the age of twenty-one years, the interest of the said child dying shall survive and go to the child living."

The will also contained an appointment of testator's wife as trustee in the management and control of funds arising from life insurance policies for the benefit of the two children, to be paid to them equally on arrival of each at the age of 21 years.

The son, Sanders A. Fowler, and the grandson, John P. Campbell, are the surviving beneficiaries of the will of L. A. Fowler.

The question now presented is the duration of the power conferred on the widow by the will of L. A. Fowler to sell and convey certain real estate devised by the will. The children were both of age in 1889. The widow made a conveyance of the parcel of land involved to Albert C. Wahl on June 17, 1926, giving her source of title as the will of L. A. Fowler, dated July 1, 1878. This action was instituted by the appellant, John P. Campbell, for a judicial sale of the land conveyed to Wahl and a division of the proceeds among the owners. It was alleged that the appellant, John P. Campbell, and the appellee Sanders A. Fowler each owned an undivided one-third interest therein, derived from the will of L. A. Fowler and that the appellee Albert Wahl owned a like one-third interest therein derived from the deed to him by Laura S. Fowler. A demurrer was sustained to the petition as amended, and plaintiff declined to plead further, whereupon the action was dismissed. The plaintiff prosecutes this appeal.

It is argued for appellant that the power of sale conferred by the will was of limited duration, and expired by implication when the youngest child reached the age of 21 years. The power to sell and convey the land and reinvest the proceeds as she deemed best for the interest of the estate was conferred upon the widow by the second section of the will, and its duration is not thereby limited. The argument that the power ended when the youngest child arrived at the age of 21 years is deduced from the seventh section of the will, which expressed a wish for a distribution of "all of the estate undisposed of" when the children arrived at the age of 21 years. It is also insisted that by necessary implication the power ceased when the purposes for which it was created had been accomplished. Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279, 20 A. 961, 12 L. R. A. 62. That purpose, it is urged, was to vest control in the widow for the benefit of herself and children until the children were of age, when each of the beneficiaries should come into his own.

The allegations of the petition are controlled by the exhibits filed with it (Durham v. Elliott, 180 Ky. 724, 203 S.W. 539; Kaze v. Wheat, 223 Ky. 719, 4 S.W.2d 723), and, if we find that the power of sale conferred by the will did not terminate, it follows that the demurrer was properly sustained, and the judgment should be affirmed.

The duration of a power of sale, granted by a will or other instrument, depends upon the intention and purpose of the donor, as derived from the terms of the instrument itself. The test is not what the testator intended to say, but what he meant by the terms he chose to employ. Weedon v. Power, 202 Ky. 542, 260 S.W. 385; Fidelity & Columbia Trust Co. v. Harkleroad, 224 Ky. 5-9, 5 S.W.2d 477; Commonwealth v. Manuel, 183 Ky. 48, 208 S.W. 327.

If an ambiguity be found in the instrument, when considered as a whole, resort may be had to the facts and circumstances for light in the solution of the problem. It is the general rule that such powers persist until the purposes of their creation are consummated. 31 Cyc. 1051.

It will be observed that the will of L. A. Fowler devised the property to his wife, Laura S. Fowler, for the separate use of herself and the two children, Sanders and Bertie "with power in my said wife to sell and convey or dispose of any part" thereof, "and reinvest" the proceeds as she might "deem for the best interest of the estate." The Supreme Court of the United States, in Phelps v. Harris, 101 U.S. 370, 25 L.Ed. 855 held that the use of the words "to dispose of" property devised signified more than the mere power to sell with which the words were associated. This court adopted that construction of a similar clause in the case of Sherill v. Ouerbacker, 182 Ky. 626, 206 S.W. 876, and held that, when a power was conferred without limitation on the mode of its exercise, it might be exercised by deed or will, and it follows that such powers endure during the life of the donee. The soundness of the definition and the distinction was expressly assumed in the case of Knost v. Knost, 178 Ky. 267, 198 S.W. 917. See, also, Kleber v. Kleber, 67 S.W. 838, 24 Ky. Law Rep. 7; Becker v. Roth, 132 Ky. 429, 115 S.W. 761; Nelson v. Nelson, 140 Ky. 410, 131 S.W. 187. Yet the word ""dispose," as used in Fowler's will, is modified by the direction of the same clause that the...