Garland v. Smith

• Citation: 64 S.W. 188,164 Mo. 1
• Parties: GARLAND v. SMITH, Appellant
• Decision Date: 18 June 1901
• Court: United States State Supreme Court of Missouri

64 S.W. 188

164 Mo. 1

GARLAND v. SMITH, Appellant

Supreme Court of Missouri

June 18, 1901

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Frederick N. Judson, John F. Green and J. Clarence Taussig for appellant.

(1) The power of disposition, over the remainder interest in the real estate, given to Persis Smith by the trust deed to Edward Filley, could be effectively exercised either by deed executed in consideration of love and affection, or by last will and testament. (a) Because it appears from the trust deed that the grantor intended to place no limitation or restriction upon the method by which she was to exercise her power of disposition or appointment, except that it must be an instrument in writing, which includes both deeds and wills. Chance on Powers, p. 778; Farwell on Powers, 143, 145; Wead v. Gray, 78 Mo. 65; Smith v. Adkins, 41 Law J. Ch. 698; Irwin v. Fanan, 19 Vesey, 66 ("by will or otherwise" deed held good) Buchell v. Blenhorn, 5 Hare, 131 (deed or deeds, or other writing); Taylor v. Mead, 4 De G., J. & S. 597; 4 Kent's Commentaries, 330; Hill v. Jones, 56 Ala. 214. (b) Because it appears from the trust deed that the grantor executed it to protect the estate of his wife from his marital rights during coverture. And, as it was a deed for the sole and separate use of Persis Smith, conveying a life estate with power to dispose of the fee to such person or persons and for such use and purposes as she deemed best she, as a married woman, could execute that power, in any manner not expressly prohibited by the terms of the trust deed. Kim v. Wippert, 46 Mo. 532; Ryland v Banks, 151 Mo. 1. (c) Because it appears from the trust deed, that the grantor made no limitation over as to the proceeds of the said real estate in case it should be sold by Persis Smith, or as to any portion of the proceeds of sale that might remain unexpended at the death of Persis Smith and no directions as to the reinvestment of the proceeds of a sale, or any portion thereof, for the benefit of Charles Garland or his heirs. In other words, it was the creation of a fund solely for the benefit of Persis Smith, and the designation of the heirs of Charles Garland was only for the contingency of Persis Smith failing to make any other disposition of the property, or to have heirs of her body to inherit it. Tyson v. Tyson, 31 Md. 134; Burbank v. Sweeney, 161 Mass. 490; Tower v. Hartford, 115 Ind. 186; Norcum v. D'Oench, 17 Mo. 116; Nevin v. Gillespie, 56 Md. 321. (d) Because it appears from said trust deed that the power given Persis Smith to dispose of the fee in said land, was given her to be exercised at her pleasure for such uses and purposes, and in favor of such person or persons as she pleased. The grantor did not restrict its exercise in favor of any particular class of remaindermen from whom she was to make the selection, and the occasion of its exercise was not conditioned upon her necessities. Burbank v. Sweeney, 161 Mass. 490; Norcum v. D'Oench, 17 Mo. 116; Tyson v. Tyson, 31 Md. 134; Nevin v. Gillespie, 56 Md. 321. (e) Because it appears that the remaindermen are not the heirs of James Smith, the grantor, but they are certain collateral heirs of Persis Smith, the donee of the power, and they were named in the trust deed only for the purpose of designating the disposition of the estate in the event of the donee of the power failing to make any other disposition, or having no heirs of her body. Norcum v. D'Oench, 17 Mo. 98. (f) Because the words "Or otherwise dispose of the same to such person or persons, and for such uses and purposes as she may at any time by writing, by her signed, direct and appoint," are as broad and comprehensive as it is possible to make them; and in construing this deed it is the duty of the court to give effect to all its language, including these words, by which the grantor obviously intended to authorize a disposition of the property by way of gift, as well as by sale, exchange, or mortgage. Wead v. Gray, 78 Mo. 59; Drake v. Crane, 127 Mo. 85; Burbank v. Sweeney, 161 Mass. 490; Flanagan v. Flanagan, 8 Abbot's N. C. (N. Y.) 413; Tyson v. Tyson, 31 Md. 134; State v. Denstring, 33 Minn. 102; Tower v. Hartford, 115 Ind. 186; Nevin v. Gillespie, 56 Md. 321; Lowther v. Bembinck, 19 Eq. 167; Carpenter v. Mitchell, 54 Ills. 126; Downing v. Marshall, 23 N.Y. 388; Long v. Times, 107 Mo. 519; Phelps v. Harris, 101 U.S. 380; Burwell v. Anderson, 3 Leigh (Va.), 248. (2) But if the said warranty deed of June 26, 1888, was not effective to vest a fee simple estate in said land in defendant, because it did not contain a reference to the trust deed, then the will of Persis Smith, which expressly refers to the said power of disposition or appointment given Persis Smith by said trust deed, was an effective exercise of said power of disposition or appointment. 2 Jarman on Wills, p. 277; Gainsford v. Dunn, 17 Law Rep. Eq. 405; Ferrier v. Joy, Law Rep. 10 Eq. 550; Thornton v. Thornton, Law Rep. 20 Eq. 599. (3) Neither was it necessary that Edward Filley, the trustee, should join with Mrs. Smith in the execution of said warranty deed of June 26, 1888, or that appellant should obtain a deed from Edward Filley in order to perfect his title. The trust created by the deed of James Smith was a passive dry trust. Rylands v. Banks, 151 Mo. 1; Roberts v. Mosley, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 116; Cornwell v. Orton, 126 Mo. 366; Pew v. Hays, 113 Mo. 424; 2 Jarman on Wills, p. 277; Collier's Will, 40 Mo. 329; Gainsford v. Dunn, 17 Law Rep. Eq. 305; Ferrier v. Joy, Law Rep. 10 Eq. 550; Thornton v. Thornton, Law Rep. 20 Eq. 599; Coxan v. Rowlan, 1 Ch. 406 (1894); Amery v. Meredith, 7 Allen 399; Hessen v. Hogan, 30 N. E. (Mass.) 469.

Hiram J. Grover, J. E. McKeighan and Jos. S. Laurie for respondent.

(1) Mrs. Smith had no power under the deed of 1865 from her husband to Filley, trustee, to give away the property in question. "Powers are to be construed in the light of the purpose which the donee of the power is appointed to accomplish and the intention of the donor as to its mode of accomplishment." 18 Am. and Eng. Ency. of Law, p. 895. "The extent of the power is to be settled by the language employed in the whole instrument, aided by the situation of the parties and the property and any other circumstances having a legal bearing and throwing light on the question." Le Roy v. Beard, 8 How. (U.S.) 466; Taussig v. Reel, 134 Mo. 542; Walton v Drumtra, 152 Mo. 497. It appears that James Smith being apprehensive lest financial disaster should overtake him and sweep away all his property, executed this deed as a matter of precaution in order to assure his wife a home during life, and realizing that in the event of his insolvency she would need money for her support in addition to a home, he added a power of appointment to enable her to raise the necessary money out of the property. It being thus shown that his purpose was to secure to her, during life, the means of support in case he should become insolvent, it follows that he only intended to lodge in her a power of appointment to be exercised for her own benefit. This negatives and excludes any intention on his part to give her a power enabling her to donate the fee of the property and thereby deprive herself of the very means of support which he had thus set apart for her. He wished to protect this property from the claims of possible creditors in order that the same or its proceeds might remain, notwithstanding his insolvency, a source of income and means of support to her. "The power to sell does not confer the power to mortgage nor make a gift of the property or transfer it for any purpose other than a completion of the sale." 18 Am. and Eng. Ency. of Law, p. 940. "A power to sell does not authorize a gift of the property or of the transfer of it for any purpose other than in completion of the sale." Dupon v. Werthman, 10 Cal. 354; Ferry v. Laible, 31 N.J.Eq. 566; McDonald v. Quick, 139 Mo. 484. (2) Appellant insists that the sweeping phrase "or otherwise dispose of," so enlarges Mrs. Smith's power of disposal as to make it absolute, and thereby enable her not only to sell and incumber, but to give the property away, and that, too, either by deed or will, as she might see fit. On the other hand respondent contends that such general words, used as they are after specific terms, are to be confined to things ejusdem generis with the things previously specified. County of Johnson v. Wood, 84 Mo. 509; State v. Schuchmann, 133 Mo. 111; Price v. Courtney, 87 Mo. 387; McDonald v. Quick, 139 Mo. 484; Park's Admr. v. Am. Home Miss. Soc., 62 Ver. 19; Glover v. Reade, 80 Mich. 228; Robison v. Shotwell, 55 N. J. E. 318; Fleming v. Mills, 182 Ill. 464; Helferich v. Helferich, 26 Weekly Law Bull. 313; Sires v. Sires, 43 S.C. 266; Young v. Ins. Co., 101 Tenn. 311; Griffin v. Griffin, 141 Ill. 373; Price v. Bassett, 168 Mass. 598; Wooster v. Fitzgerald, 61 N. J. L. 368. A power in the life tenant to sell and dispose of the fee for her support and benefit is not a power coupled with an interest, but a naked power. Ferre v. Am. Board, 53 Vt. 162; Logue v. Batman, 43 N.J.Eq. 434; Morefrew v. Railway, 107 Cal. 587. A power to sell with interest in the proceeds is not a power coupled with an interest. Hall v. Gambrill, 34 C. C. A. 190; State ex rel. v. Walker, 125 U.S. 339; Green v. Cole, 103 Mo. 78; Wood v. Kice, 103 Mo. 336. (3) There was no valid execution by Mrs. Smith of her power of appointment. Should it be held that the deed of 1865 was not intended merely for her support, and consequently that her power of disposal might be lawfully exercised for other purposes, still we contend for several reasons that there was no valid execution of the power. First. It was essential that the...