Grace v. Perry
| Decision Date | 20 June 1906 |
| Parties | PATRICK F. GRACE, Appellant, v. PERRY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wm. Zachritz Judge.
Reversed and remanded.
McKeag & Cummings for appellant.
The power of disposal vested in James S. Dougherty, Jr., of his interest in the property is unlimited at his discretion, and the very fact that he added to the words which make the deed convey a fee simple title the words "the absolute estate in fee simple title in and the undivided half of," etc plainly shows that it was not his life interest he intended to dispose of, but his absolute estate in fee simple in this deed of trust; he gives full power and authority upon condition that these notes specified in the deed of trust are not paid to sell all he had mortgaged and convey a fee simple title to the purchaser, which was accordingly done, and James S. Dougherty nor his wife, nor any other person claiming through him, is raising any objection to this sale or to the plaintiff's title to the one undivided one-half of the property described. Campbell v. Johnson, 65 Mo. 439; Wead v. Gray, 78 Mo. 64; Boyer v. Allen, 76 Mo. 498. The word used in this will, "dispose," is much broader than the word "sell." There is no limitation to the manner of disposal nor precedent conditions; that was discretionary with James S. Dougherty Jr. He used that discretion and no court will interfere, and as we have already stated, he nor no one claiming under him is asking for the intervention of the court. We submit he could convey as a gift, mortgage, sell outright or give a power of attorney to sell and convey, or direct and empower a trustee upon a certain contingency, such as in the deed of trust in the record, upon the failure to pay the notes described therein, to sell and convey, which was done and executed in this instance -- by making a conveyance of the fee simple title by the trustee. Phelps v. Harris, 101 U.S. 380; Fling v. Goodall, 40 N.H. 219; Ryland v. Bank, 151 Mo. 8.
J. L. Minnis, amicus curiae.
(1) The manifest intention of the testator as expressed in his will was to devise to each of his children a life estate in the undivided one-half of the residue of his estate, with power to dispose of the fee to such half after attaining majority, and the remainder to the survivor for life with like power contingent on the death of the other without issue, but if both children have issue, then with remainder to such issue per stirpes; if only one of the children has issue, with remainder to such issue; but if both of the children die without issue, then with remainder on the death of the survivor to Loker. Of course, the remainders are contingent on the failure of the children to exercise the power to dispose of the fee. (2) There are no legal obstacles to the enforcement of the will, as thus interpreted. (3) The power to dispose of the fee vested in the first takers included the power to revoke the devise to the issue of the first takers and to the grandnephew. 4 Kent, p. 360; 1 Sug. on Powers (3 Am. Ed.), p. 288, sec. 8. (4) The devise to the issue of the first takers, and on failure of such issue, to the grandnephew, is an estate limited in default of the exercise of the power given to the first takers. 2 Sug. on Powers (3 Am. Ed.), p. 29, sec. 3, and p. 184, sec. 1. (5) The question is no longer debatable in this State. Russell v. Eubanks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Greffet v. Willman, 114 Mo. 106; Evans v. Folks, 135 Mo. 397; Underwood v. Cave, 176 Mo. 1; Garland v. Smith, 164 Mo. 1.
P. A. Griswold for respondent, Augusta Lucy Dougherty Perry.
(1) The appointment of Thomas M. Grace as trustee in lieu of Mauvais did not comply with the conditions set forth in the deed of trust under which appellant claims and hence was void. Perry on Trusts, sec. 287; Guion v. Picket, 42 Miss. 77. (2) Plaintiff cannot excuse his failure to offer in evidence at the trial a certain quit-claim deed from Dougherty to Grace, on the ground that the decision of the court a month aftewards was a surprise to him. Fretwell v. Laffoon, 77 Mo. 30; Boyce v. Mooney, 40 Mo. 106; Hanley v. Blanton, 1 Mo. 49; 3 Graham and Waterman on New Trials, pp. 874-944. (3) Plaintiff cannot lug into this case, as newly-discovered evidence, a deed which he had in his possession at the trial and failed to offer, by attaching same to a motion for a new trial. State v. Soper, 148 Mo. 240; State v. Miller, 144 Mo. 30; State v. McLaughlin, 27 Mo. 111, citing the rule stated in Berry v. State, 10 Ga. 527. (4) Plaintiff has no grievance because the trial court admitted his evidence subject to defendants' objection. The party whose objection was held in suspense might complain but not his adversary. (5) Where the grantor has an estate that will pass without executing the power, and the instrument does not contain a particular reference to the power, the law will presume that he intended to convey such estate, and no more. Pease v. Iron Co., 49 Mo. 127; 1 Sugden on Powers, 356, note 1; 2 Washburn on Real Property, sec. 1717; 4 Kent's Com., p. 335. (6) The power of disposal created by the words "with full power and authority to dispose of the absolute estate in fee simple title" did not confer on defendant, Dougherty, the power to mortgage his estate, but should be construed as a power to sell. Matter of Hesdra, 2 Connoly 519; Lessee of Williams v. Veach, 17 Ohio 181; Hunt v. Hunt, 11 Nev. 449; Stokes v. Payne, 58 Miss. 618; Matter of Davids, 5 Dem. 16; Matter of Davids, 5 Dem. 254; Sires v. Sires, 43 S.C. 271. (7) Power to sell does not include a power to mortgage. Price v. Courtney, 87 Mo. 395; Wood v. Kice, 103 Mo. 329; Farwell on Powers, p. 457; 2 Washburn on Real Property, sec. 1690; 4 Kent's Com. p. 331; 1 Jones on Mortgages, sec. 129. (8) Where the courts have enlarged the meaning of the word "dispose" they have done so in order to effectuate a transaction which was equivalent to a sale out and out. Phelps v. Harris, 101 U.S. 380; Fling v. Goodall, 40 N.H. 219. (9) In the execution of a power the law requires strict compliance with the terms of the donor, and especially will this be true of a power to cut out remaindermen, as in the case at bar. Garland v. Smith, 164 Mo. 15; Price v. Courtney, 87 Mo. 391; 2 Washburn on Real Prop., sec. 1688; Tiedeman on Real Property, sec. 567. (10) The office of a deed of trust is not to alienate land, but to create a lien thereon, and is wanting in all the essential elements of alienation. Dougherty did not "dispose of the absolute estate in fee simple title," when he executed this deed of trust; he simply created a lien upon the land. Dickerson v. Bridges, 147 Mo. 243.
Nagel & Kirby also for respondent, Augusta Lucy Dougherty Perry.
(1) In the construction of a will all parts of the will must be read together, in the light of the surrounding circumstances and with the purpose of ascertaining who were intended to be the objects of the testator's bounty. His intentions thus disclosed will be made effective unless they contravene some fixed rule of law. Underwood v. Cave, 176 Mo. 12; McMillan v. Farrow, 141 Mo. 55; Meiners v Meiners, 179 Mo. 626; McCulloughs, Admr. v. Anderson, 7 L. R. A. (Ky.) 840. (2) A power of disposition added to a life estate is not repugnant either to the life estate or to the remainder over. If not exercised it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of, -- the remainder being subject to such defeat. Rubey v. Barnet, 12 Mo. 3; Gregory v. Cowgill, 19 Mo. 415; Bryan v. Christian, 58 Mo. 98; Reinders v. Koppelmann, 68 Mo. 482; Russell v. Eubanks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Gavin v. Allen, 100 Mo. 293; Lewis v. Pitman, 101 Mo. 281; Evans v. Folks, 135 Mo. 397; Buford v. Aldridge, 165 Mo. 419; Underwood v. Cave, 176 Mo. 1; McCulloughs, Admr. v. Anderson, 7 L. R. A. (Ky.) 836; St. L. Brew. Assn. v. Fueller, 182 Mo. 93; Hoxie v. Finney, 147 Mass. 616; Roberts v. Lewis, 153 U.S. 367; Dickey v. Barnstable, 98 N.W. 368; Hamlin v. U. S. Exp. Co., 107 Ill. 443; Hovey v. Walbank, 100 Cal. 193; Clark v. Middles-worth, 82 Ind. 240; Stuart v. Walker, 72 Me. 145; Wiley v. Gregory, 135 Ind. 647; Collins v. Wickwire, 162 Mass. 143; Hemhauser v. Decker, 38 N.J.Eq. 426. (3) When a power of disposal is beneficial, i. e., is given to a donee with intent that he may, by exercising it, benefit himself, it is more liberally construed in his favor than when it is a mere power in trust. Russell v. Eubanks, 84 Mo. 89; McCulloughs, Admr. v. Anderson, 7 L. R. A. (Ky.) 840; Sweeney v. Warren, 127 N.Y. 426; In re Hesdra, 2 Connoly, 514; Williams v. Veach, 17 Ohio 171; Cain v. Cain, 29 So. 846. (4) A general power may be exercised in favor of the donee or his creditors. The powers given by the Dougherty will were beneficial and general, and therefore included a power to give away, and to mortgage. Russell v. Eubanks, 84 Mo. 89; Ross v. Rauschenbusch, 173 Mo. 589; 22 Am. and Eng. Ency. Law (2 Ed.), 1098, 1133; Simpkins v. Bales, 98 N.W. 580; King v. Warren, 32 Beav. 111; Hicks v. Ward, 107 N.C. 392; Degman v. Degman, 98 Ky. 717; Holt v. Hogan, 5 Jones Eq. 82 (58 N.C. 82); Shank v. Dewitt, 44 Ohio St. 237; Mut. Life v. Everett, 40 N.J.Eq. 346; In re Linzces Sett., 23 Beav. 241; 2 Washb. on Real P. (4 Ed.), 659; Williams on Real P. (17 Ed.), 439; 1 Sugden on Powers, 514; Farwell on Powers, 67. (5) The words "to dispose of," when not qualified or limited by the context, have no technical or limited meaning, and therefore give an untrammeled power of disposition. Andrew v. Auditor, 5 Ohio (N. P.) 128; U. S. v. Gratiot, 39 U.S. (14 Pet.) 526; Phelps v. Harris, 101 U.S. 370; Stokes v. Payne, 58 Miss. 614; ...
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