Norcum v. D'Œnch

• Citation: 17 Mo. 98
• Parties: NORCUM, Plaintiff in Error, v. D'ŒNCH & RINGLING, Defendants in Error.
• Decision Date: 31 October 1852
• Court: United States State Supreme Court of Missouri

17 Mo. 98

NORCUM, Plaintiff in Error,

v.D'ŒNCH & RINGLING, Defendants in Error.

Supreme Court of Missouri.

October Term, 1852.

1. An outstanding title, which was in existence at the commencement of the suit, is a bar in ejectment, although extinguished by the plaintiff before trial.

2. A testator, in one section of his will, gave his wife a life estate in his mansion house and plantation. In the next section, he willed that “all the

residue and remainder” of his estate should remain with her, as long as she continued a widow, to be by her used, and, in certain contingencies, disposed of, for the benefit of herself and her children. Held, Her power of disposal extends to the reversionary interest in the mansion house and plantation.

3. Where there is a power of disposal, with a right to enjoy the money arising from its exercise, united in the same person, it is not necessary that the power should be strictly pursued.

4. When an estate is devised to one, with a power of disposing of it absolutely, for the benefit of the heir, there being no express estate for life limited to the devisee, a conveyance by him will pass a fee; the heir cannot take advantage of his non-compliance with the direction of the will, but, as cestui que trust, must compel an observance of the trust by a suit in equity.

5. Although the intent of a testator is to govern, in construing his will, yet, it is not necessary to search out his intent, in order to ascertain whether a power should be coupled with a condition, when none is actually annexed to it.

6. Where a will makes the consent of the executor necessary to give validity to a sale by the widow of the testator, having the power of disposal for the benefit of herself and children, and the executor withholds his consent for a mere selfish reason, a court of equity will, on application, authorize a sale.

Error to St. Louis Court of Common Pleas.

W. L. Williams, for plaintiff in error. 1. Mrs. Mackay could not sell the land in controversy at all, under the will of her husband. The words “residue and remainder” in the 7th section do not include the reversionary interest in the mansion house and plantation. Those words are to be taken in their ordinary and not technical sense. 2. If the will gave her power to sell, she did not legally exercise that power. The consent of Soulard and Long was necessary. It was not a power coupled with an interest, but a mere naked power, which did not survive and could not be exercised without full compliance with the conditions. It was not a power to his executors or any one of them virtute officii, but to his wife, as such. Sugden on Powers, 142, 165, 179, 181. Hill on Trustees, 165. Authority or power must be referred to in a deed made by attorney, and the necessity for its execution must exist. Sugden on Powers, 181. Bruce v. Duke, 2 Litt. 247. 3 ib. 411. If it be contended that the after clause of the 7th section of the will gives the power to sell, then it was not exercised. The grantor is not presumed to have exercised any power but that referred to in the deed. Sugden on Powers, 201. 3. The life estate in the wife, created by the will, was not a substituting outstanding title at the trial, to prevent a recovery. The plaintiff had purchased it. 1 Tenn. R. 516. 9 Yerg. 325. Tillinghast's Adams, p. 30. 4 John. R. 202. Foster v. Joice, 3 Wash. C. C. R. 498.

F. M. Haight for same. 1. The sixth section of the will did not give Mrs. Mackay a life estate in the premises. 2. If it did, it was shown, at the trial, to have been extinguished. An outstanding title, to be a bar, must be a present subsisting title when offered in evidence. 1 T. R. 515. 3. Mrs. Mackay had no power to sell the mansion house and plantation. The words “residue and remainder,” in the seventh section, are descriptive of the subject and not of the estate. They immediately follow the disposition of the mansion house and plantation. All the property included in those words was to be enjoyed in common by the wife and children, which could not be, if the mansion house and plantation were included. There could be no enjoyment in common of the reversion, because there could be no possession until Mrs. Mackay's death. This shows the intention of the testator. 4. But it is said there is a general power conferred at the latter end of the section, which covers the whole case. This was a power only to be exercised in the event of the second marriage of his wife. It violates a sound rule of construction to suppose that two powers, for the same object, are conferred upon different persons in the same section. 5. The direction in the fourth clause of the will as to legacies and the payment of them, does not confer a power to sell and convey real estate. 1 Comstock's Rep. 120. If it does, it was not executed. Where there are different powers in the same will, or deed, to be exercised for various and different purposes, the expression of one excludes any implication that the other was executed. 1 Sug. on Powers, 376, and cases there cited. 6. If Mrs. Mackay had the power to sell, it could only be exercised with the advice of the executors named in the will. What is meant by the words, “by and with the advice?” Do they mean that she shall advise with them, and having asked their advice, is at liberty to do as she pleases? Do they mean, as is contended, a “mere moral influence,” but not the prerequisite to the exercise of the power granted? The object is apparent. It was to prevent improvident bargains by a woman, having, it is presumed, not much experience in business. Formalities, essential or otherwise to the execution of a power, if imposed by the donor, are to be strictly complied with. 1 Sug. on Powers, 264, 334, 339. 3 East, 410. Equitable relief against defective executions of powers is never applied to cases of this kind. 2 Hilliard, 562. Sug. on Powers, 94. The doctrine of Lord. Mansfield, as reported in Cowper, 260, has been long since exploded. 2 Dyer, 219. The owner of the property may impose any restraint he sees fit, not inconsistent with public policy or moral obligation. His will stands as a reason for his action. 7. It is said that Mrs. Mackay was sole surviving executrix when the power was executed. But the bargain was made during the life of Soulard, and against his consent, and the postponement of the deed, or taking a new one after his death, was a fraud upon the power and an evasion of its provisions, which renders the deed void and inoperative. Again, the will provides for the appointment of executors in the place of those who die or refuse to act. Therefore, the whole doctrine of survivorship is inapplicable. The same reasons apply to the argument from the statute cited. Townsend v. Wilson, 1 Barn. & Ald. 609. Opinion of Thompson, C. J. in Franklin v. Osgood, 14 Johns. 527.

Spalding & Shepley, Geyer v. Dayton, for respondents. 1. The statute law here had always been and was then, that the executors qualifying, or their survivors had power to sell real estate authorized by will to be sold. 1 Ter. Laws, sec. 49, passed 4th July, 1807. Same, p. 411, passed 21st January, 1815. Same, 925, sec. 25, passed 12th January, 1822. 2. At common law, executors were considered as having the power virtute officii, where it was not expressly made a personal trust, if the will authorized a sale of land. 1 Sug. on Powers, 128, 133, 141, 143-4. By the liberality of modern decisions, the power survives to surviving executors. 2 Williams on Executors, 626. 1 Powell on Devises, 243-4, note. 3 Binney, 69. 8 Porter, 380. 2 Greenl. 373. 1 Dev. & Bat. 389. 2 ib. 262. 1 Williams on Ex'rs., 413. 1 Comstock's Rep. 341. Cro. Eliz. 80. 3. The power may be conferred in any words; the intent governs. If land is directed to be sold by a will, without stating who shall sell, the executor has the power to sell, if he is to handle the fund. 1 Sug. 115-16, 133, 336. Cro. Eliz. 80. 4. The power may be exercised, without any reference to it in the deed or act of execution, and even with a wrong and mistaken reference. The intent governs, which may be ascertained from the act itself and other circumstances. 1 Sug. 373, 377, 396, 388, 257. 2 Watts, 185. 2 Hilliard, 564. 2 Bing. 496. 5. Powers, in courts of law, as well as in courts of equity, are to be liberally construed, so as to attain the intent and object for which they were conferred. 11 Johns. Rep. 169. 3 East. 410, at p. 441. 1 Cowper, 266. 2 Sug. 335. Equity relieves against defective execution of power, if there be a consideration. 2 Sug. 94, 95, 100. Smith v. Bell, 6 Peters, 68. 6. A power, coupled with an interest or with the execution of trusts, survives. Franklin v. Osgood, 14 J. R. 527. 15 Johns. 346. Cooper v. Given, 16 Johns. 167. 3 McCord, 29. 10 Peters, 564. 2 Johns. Ch. R. 19. 5 Howard, 233. 7. If consent were necessary to the execution of the power in Mackay's will, it was not necessary to insert that consent in the deed, or that the deed should refer to it. 1 Sug. 332, No. 3. 8. In the present case, it was not necessary to prove consent of any person to the deed and sale to Rutgers. It was the consent of the executors, if any one, that was required, and Mrs. Mackay was the sole surviving one of those qualifying. 2 Powell on Devises, 1 to 5. The first power in the seventh section of the will is substantially a power to the executors, to be exercised by them virtute officii. The last power explains and confirms the first and shows that it was a power to the executors, herself being one of them. The will does not require the consent of the executors to a sale. It merely says, his wife is authorized and directed “by and with the advice of my executors,” &c. Now this advice is required as much for “providing and taking and using” anything out of the estate as for selling lands. The inference is, therefore, that the advice required was general advice and not consent to each act. She was to consult them and be guided by them, but their consent was not a...