Matthews v. Capshaw

• Decision Date: 10 January 1903
• Citation: 72 S.W. 964,109 Tenn. 480
• Parties: MATTHEWS et al. v. CAPSHAW et al.
• Court: Tennessee Supreme Court

72 S.W. 964

109 Tenn. 480

MATTHEWS et al. v. CAPSHAW et al.

Supreme Court of Tennessee.

January 10, 1903

Appeal from Chancery Court, Putnam County; T. J. Fisher, Chancellor.

Suit by one Matthews and others against one Capshaw and others. From a judgment for defendants, complainants appeal. Affirmed.

Bryant & McBroom and F. T. Faucher, for appellants.

Algood & Finley and R. B. Capshaw, for appellees.

SHIELDS J.

Complainants children and devisees of Lawrence Matthews, deceased, bring this bill to assert their title in remainder upon the falling in of the estate of their mother, Mr Agnes Matthews, for her own life, now outstanding, in certain valuable lots in Cookeville, Tenn., and to have declared void and inoperative a deed made by Mrs. Matthews, purporting to convey the property in fee to Simeon Hynds.

Lawrence Matthews made his will in 1860, and died in 1874, the owner of real and personal property including that in question, and leaving Agnes Matthews, his widow, and complainants (12 in number), his children, surviving. His will was duly admitted to probate, and John F. Matthews and Mrs. Agnes Matthews, the executor and executrix therein named, were qualified.

The first clause of the will is in these words: "First. If my wife, Agnes, should live longer than I do, I want, at my death, all of my just debts to be paid, and then I want my wife, Agnes, to have all my lands and negroes and effects during her life or widowhood, and that in case of necessity I authorize my wife, Agnes, to sell any properties or lands or negroes, as same as I could for myself, for the benefit of the family." The other clauses contain some small bequests to certain of his children, and a special provision that all of his children shall be made equal in the distribution of his estate.

On November 5, 1877, Mrs. Agnes Matthews conveyed the property in controversy, for a valuable consideration in hand paid, to Simeon Hynds, in fee, with formal covenants of seisin, good right to convey, and general warranty; and through several intermediate conveyances, purporting to convey in fee, made for valuable considerations paid, and without notice of the claim now attempted to be asserted, the several defendants now have possession and claim title to the property. The deed to Simeon Hynds contains no reference to the will of Lawrence Matthews, or the power of disposition of his property therein given to his wife. At the time this conveyance was made, Mrs Matthews was in possession of some five or six hundred acres of land, and had some money and other personal property; but the condition of the estate of the testator and of the several complainants does not fully appear, save that the personal estate was evidently small, and the children had not been advanced equally. Mrs. Matthews, who is now about 90 years of age, was examined as a witness, and testified that she sold the property because she thought she had the right to do so, and that she accounted for the proceeds in a settlement she made as executrix some 9 years afterwards. There is no charge of fraud or unfairness in connection with the sale and conveyance of the lots.

The complainants insist that the power of sale vested in Mrs Matthews was a limited power, to be exercised only upon the happening of a certain contingency, and that she was not authorized to convey the property of the estate unless a necessity for such sale arose, and that, under the facts above stated, no such necessity existed when the sale was made to Simeon Hynds, and, further, if a necessity did exist, the power given her was not exercised, since the deed contains no express recital that it was her intention to execute it, and the presumption is that she only intended to convey her estate for life, and for these reasons her conveyance was only effective to pass her life estate; that they are the rightful owners in the remainder of the fee to the property; and they bring their bill to have this adjudged, and the conveyance of Mrs Matthews, so far as it purports to convey the fee, declared a cloud on their title, and removed.

The general rule of law, unquestionably, is that, where a special power of sale is given, to be exercised only upon the happening of a certain event, made a condition precedent, it can be executed only in the mode, at the time, and upon the conditions prescribed in the instrument creating it, and the purchaser must, at his peril, ascertain whether the contingency upon which the sale is authorized exists. This rule is recognized and adhered to by this court in all cases proper for its application, and it is not necessary to cite authorities to sustain it. But the rule only applies where the condition upon which the power is to be exercised is upon the happening of a certain event or independent fact, such as majority or marriage of some one named, which may be ascertained by any one with equal certainty. It does not apply and is not the law where the condition is such that the determination whether it has been fulfilled, or not, requires the exercise of judgment and discretion, as to which there may be an honest difference of opinion; and in cases of this character the decision of the donee of the power is conclusive of the question, and a sale made in pursuance of the power, in good faith or without notice to innocent purchasers, will not be set aside, although it may afterwards appear that the judgment of the donee was erroneous. This distinction is well established by the authorities. Chief Justice McIver, of the Supreme Court of South Carolina, in a well-reasoned opinion in a case involving this question said: "It is quite clear that the power of sale was a conditional one, and it is equally clear that the condition was, in its nature, precedent, and not subsequent, and that, such being the case, until the condition was performed, or the contingency upon which the power was conferred happened, the power could not be lawfully exercised. So that the real question in this case is whether the contingency upon which the power to sell was given had happened at the time the sale was made, and, as subsidiary to this, who was to determine whether the contingency had happened. To solve these questions, it will be necessary to inquire what was the nature of the condition. Was it the happening of a distinct and independent fact, or was it a condition which, in its very nature, involved the exercise of judgment or discretion...