Littleton v. Addington

• Decision Date: 28 February 1875
• Citation: 59 Mo. 275
• Parties: FRANCIS P. LITTLETON, et al., Respondents, v. W. H. ADDINGTON, Appellant.
• Court: Missouri Supreme Court

59 Mo. 275

FRANCIS P. LITTLETON, et al., Respondents,

v.W. H. ADDINGTON, Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from DeKalb Circuit Court.

J. D. Strong & Bennett Pike, for Appellant.

I. The devise of an estate with power of disposal will pass a fee. (Norcum vs. D'Œnch, 17 Mo., 98; Ruby vs. Barnett, 12 Mo., 3.)

The fact that authority to sell the real estate was given to Mrs. Branscom in connection with the other executor, did not impair her right to sell the same after the settlement of the estate and the discharge of the executors, the property being given to her as a personal trust, and for her own use and benefit. (Tainter vs. Clark, 13 Met., 220-27; Hazel vs. Hagan, 47 Mo., 277; Jackson vs. VanZant, 12 Johns., 169; State vs. Boon, 44 Mo., 226; Allison vs. Kurtz, 2 Watts., 158.)

II. In such a case as this, the power may be executed by deed, without reciting it or referring to it, provided the act shows that the donee had in view the subject of the power. (4 Kent. Com., 382-83; Jones vs. Wood, 16 Penn. St., 25; Blagge vs. Miles, 1 Sto., 426; Collier Will case, 40 Mo., 287; Hazel vs. Hagan, 47 Mo., 280-81.)

Wm. Henry, for Respondents.

I. The will did not vest in the widow such personal trust or power as to enable or empower her alone to convey a title in fee simple under the power given in the will. The will provides that “It is my will that my executors shall sell,” etc. (Perry Trusts, 253, 4, §§ 273-4, p. 749, § 808; McRae vs. Farrow, 4 Hen. & Munf., 444; Dunlap's Pal. Agen., 177, note 1; Sinclair vs. Jackson, 8 Cow., 584; Green vs. Miller, 6 Johns., 39.)

II. Even if the will did vest in the widow such power as to enable her to convey a title in fee simple under the power given in the will, yet the deed from her to appellant is not to be construed as an execution of such power so as to vest in appellant the fee to the land in dispute, for the reason that said deed was not intended as an execution of the power, as shown from the face of the deed itself. (4 Kent's Com. [9th Ed.], 344; Jones vs. Wood, 16 Penn. St. [4 Harris], 25; Owen vs. Switzer, 51 Mo., 322, and cases there cited; Pease vs. Pilot Knob Iron Co., 49 Mo., 124.)

The true and uniform test is, whether there is any legal interest in the party, for if there be any legal interest on which the deed can attach, it will not execute the power. (See above authorities; 2 Washb. Real Prop., 324-5; White vs. Hicks, 33 N. Y., 383.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiffs, who were a portion of the heirs of Joseph E. Branscom, deceased, brought this action to recover certain real estate described in the petition.

It seems that Branscom, by his last will and testament, made his widow and one Brown executors of his estate; and that they qualified and executed the trust, and at the proper time made final settlement.

The land in controversy was not sold by the executors during the pendency of the proceedings in the Probate Court; but after the estate was finally settled and the executors were discharged, the widow alone sold the property to the defendant, and executed to him a general warranty deed therefor, and then, in a short time afterwards, she intermarried with him.

The question is, whether under the will the widow possessed the power of conveying the land; and if so, what estate she could rightfully convey.

The material portions of the will are as follows: “2nd. I give and bequeath to my wife, Diana Branscom, the proceeds of the sale of all my property, both real and personal, requesting that she appropriate a sufficient sum out of said property or proceeds to educate my children, Rachael, Joseph E., Emma J., and Charles Arthur, to have the use of said proceeds during her natural life, or while she remains my widow; 3rd. It is my wish that my executors shall sell at private or public sale, all my property, both real and personal, as soon after my decease as they shall deem most expedient or for the best interest of my estate, and the proceeds thereof to be used or applied in such manner as my executors shall think best, or in such way as to preserve the whole amount of my property from waste; 4th. It is my will that at the marriage or death of my wife Diana, my property should be equally divided among my children living at that time, or to their heirs, providing, however, that my said wife have the sole and exclusive control and use of my said property or money during her life or while she remains my widow; provided further, that the provisions in regard to my children's inheritance in this section, apply to all my children now living, or their heirs; 5th. I hereby appoint my wife, Diana, and Ira Brown my executrix and executor to carry into effect the provisions of this, my last will and testament.”

By the second clause above recited, it will be perceived that the testator gives and bequeaths to his wife the proceeds of the sale of all his property, and she is either to have the use of his property or the proceeds arising from a sale thereof, during her natural life or while she remains his widow. There is a request that she shall appropriate a sufficient amount to educate certain children therein named, otherwise, the use of the property or proceeds is to be absolutely hers, during her widowhood.

The third clause is the most important in the decision of this case, and...