Owen v. Ellis

• Decision Date: 31 October 1876
• Citation: 64 Mo. 77
• Parties: RUSH C. OWEN, Respondent, v. JOHN P. ELLIS, et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 77

RUSH C. OWEN, Respondent,

v.JOHN P. ELLIS, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Green Circuit Court.

John P. Ellis, for Appellants.

I. In Owen vs. Switzer, (51 Mo. 322) the deed purported to be the individual act of Louisa T. Campbell, and the court held it was her individual deed and conveyed her individual estate.

Here the deed purports to be the act of the executrix of the estate of John P. Campbell--and hence it should have effect as the deed of an executrix, and should convey such estate as the executrix could, under the will, convey. Now as executrix, Mrs. Campbell could not convey her own life estate. She, in that capacity, could only convey the fee; so that in order to give any meaning or effect to the conveyance as the act of an executrix, it must have vested the fee simple to the lands in controversy in John Lair, and constitute a bar to plaintiff's action.

A reference either to the will or to the powers therein contained, is sufficient to give effect to the deed as an execution of the powers in the will. (Pease vs. Pilot Knob Co., 49 Mo. 124; Littleton vs. Addington, 59 Mo. 275; Turner vs. Timberlake, 53 Mo. 378; citing Blagge vs. Miles, 1 Sto. 427; Jay vs. Stein, 49 Ala. 514-524; Clark vs. Haranthall, 47 Miss. 434; Drusadow vs. Wilde, 63 Pa. [St.] 170; Raine vs. Beckett, 30 Ind. 154-163.) The language “executrix of the estate of John P. Campbell, deceased,” is ex vi termini a reference to the will.

The words “my just debts to be paid first,” are an implied charge on the real estate of the testator, which in the failure of the personal property to satisfy the debts, raise a power in the executrix to sell the lands to pay the debts. (2 Sto. Eq. Jur. § 1246; Clark vs. Hosenthall, 47 Miss. 434; 2 Jarm. Wills, 512, et seq.;Foster vs. Craig, 2 Dev. & Bat. 209; 1 Sto. Eq. 428 et seq.)McAfee & Phelps, for Respondent.

I. Unless the deed refers to the power in apt and certain words it will not be taken as in execution of it, but will be construed as passing Mrs. C.'s own interest, if she had any interest for the deed to operate upon. (Pease vs. Pilot Knob Iron Co., 49 Mo. 124; Owen vs. Switzer, 51 Mo. 322; Turner vs. Timberlake, 53 Mo. 371.)

The intention to execute the power must be apparent and clear so that the transaction is not susceptible of any other interpretation. If it be doubtful under the circumstances, then that doubt will prevent it from being deemed an execution of the power. (Blagge vs. Miles, 1 Sto. 427 and authorities there cited.)

In Owen vs. Switzer, this same will was in controversy. But in that case it was held that the deed to Holland was not an execution of the power. The only difference in the deed in that case and the deed in this case is this: In this case, in the deed, Mrs. C. describes herself in this way: “I, Louisa T. Campbell, Executrix of the estate of John P. Campbell, dec'd, do,” etc., and she signs it “Louisa T. Campbell, Executrix,” while in the deed to Holland in Owen vs. Switzer, these descriptive words are left out, and this is really all the difference in the two cases.

But her power to sell was not at all dependent upon her fiduciary capacity. Without the last clause in the will, appointing her executrix, she would have the same power to sell--she would have had the power to sell without ever qualifying as executrix. (Owen vs. Switzer, supra, 328; Hazel vs. Hagan, 47 Mo. 377.)

Her designation as executrix was mere descriptio personæ. (Lecompt vs. Seargant, 7 Mo. 351; Fream & Snowden vs. Camden, 7 Mo. 298.)

There are no imperfections in the deed of Mrs. Campbell to Lair. It is either an execution of the power, or it is a conveyance of her own estate, and whether it be the one or the other must be determined by Mrs. Campbell's intentions, and her intentions must appear from the language of the deed. (1 Sto. 437; 53 Mo. 378; 51 Mo. 332; 49 Mo. 124; 2 Sto. Eq. Jur., § 1062 and note 1, and authorities there cited.)

Now is it not reasonable to suppose that she would not have made a warranty deed if she wished merely to execute a power?

It is neither proper nor customary for persons executing powers to warrant the title. Hence, the fact of this being a warranty deed is no evidence of an intention to execute the power. The deed in Owen vs. Switzer and Pease vs. Pilot Knob Iron Co. were both warranty deeds.

NAPTON, Judge, delivered the opinion of the court.

In this action of ejectment the facts vary but little from those in the case of Owen vs. Switzer, (51 Mo. 322) for which reference is made to the printed report of that case. The deed in this case from Mrs. Campbell to Lair, under whom defendants hold, differs from the deed in the case referred to in Mrs. Campbell describing herself both in the beginning and signature of the deed as “executrix of the estate of John P. Campbell, deceased.” It is signed by ““Louisa T. Campbell, executrix.” It was in the ordinary form of a conveyance in fee simple, and purported in consideration of $1,200 dollars, the receipt of which is acknowledged, to convey one hundred and twenty acres of land. The statutory words “grant, bargain, and sell” are used, and the deed purports to convey to Lair and his heirs and assigns, in fee simple forever, to their own proper use and behoof,” and contains an express covenant of seizin of an indefeasible estate in fee simple, and a covenant against incumbrances and of general warranty.

The will of Jno. P. Campbell is set out at length in the report of the case referred to, and need not be repeated here. John P. Campbell died in 1851 and the deed of Mrs. Campbell was made on the 16th September, 1854.

Evidence was offered at the trial of conversations had with Mrs. Campbell, a month or so after she had conveyed to Lair, in regard to her intentions in that sale, and her understanding of the effect of that deed. This evidence was excluded. It was proved that the land was worth about ten dollars an acre in 1854. Mrs. Campbell's death occurred before the commencement of the action. The court expressed the opinion that the deed contained no reference to the power given Mrs. Campbell in the will, and as she had a life estate, upon which the deed could operate, the deed only carried the life estate, and therefore the plaintiffs who were heirs of John P. Campbell were entitled to recover, and the judgment accordingly was for the plaintiffs.

In examining the questions presented by this case we may dismiss from further consideration, all the parol evidence offered on the trial of Mrs. Campbell's declarations in regard to her purposes and intention in making the deed. The inadmissibility of such testimony is so well established, that a citation of authorities is deemed unnecessary.

It seems to be established by all the authorities, both English and American, that in the construction of both wills and deeds, where there is both an interest and a power, the decisive question is as to the intent of the grantor or testator. Chancellor Kent says: “In construing the instrument in cases where the party has a power and also an interest, the intention is the great object of inquiry, and the instrument is construed to be either an appointment or a release; that is, either as an appointment of a use in execution of a power or a conveyance of the interest, as will best effect the predominant intention of the party.” (4 Kent. Comm. 336.)

If we were at liberty to discard certain arbitrary rules, which have been established by the courts in England, and followed to a great extent in this country, to ascertain the intention of the donee of a power, and simply inquire, without reference to any rules on the subject, what was Mrs. Campbell's intention in making this deed, but one answer, we imagine, could be made. We might safely say, as Lord Wynford said in the House of Lords, when the Roake's cases were before it (1 Dow. & Clark, 451) that nine hundred and ninety-nine persons out of a thousand would say on reading the deed, that the grantor did intend to convey a fee simple. We might go further and say that the remaining one of the thousand would come to the same conclusion. And it might be further observed that Lord Wynford's suggestion, that the rules were bad rules, was recognized by the British Parliament, and some of them were abolished by 1 Vict. ch. 26, § 27, in which it was enacted that a general devise of real and personal property should operate as an execution of a power of the testator over the same, unless a contrary intention appeared in the will. (4 Kent, note, p. 333.)

The intention of Mrs. Campbell to convey a fee simple is declared on the face of the deed, and is manifested by the most solemn assurances known to the law. But Lord Tenterden said in the Roake's case, that “it is the better course to abide by general rules and principles, and not to be led aside by subtle distinctions and considerations of hardships in particular cases; otherwise one inconsistency will occur after another and the end will be inextricable confusion.”

Recognizing the propriety of this remark, and not being aware of any legislation on the subject here, we proceed to inquire what these rules are, to what classes of cases they have been applied, and to what extent, if any, they apply to the case under consideration.

In Blagge vs. Miles, (1 Sto. 427) the rules applicable to the construction of instruments by the donee of a power are stated to be these: 1. There must be some reference to the power, or 2nd, a reference to the property which is the subject on which it is to be executed; or 3rd. The case must be one where the provisions in the will or other instrument executed by the donee of the power would otherwise be ineffectual, or a mere nullity; in other words, would have no operation except as an execution of the power.

The second of these rules would seem to apply mainly to wills, when there has been a specific devise of lands or a specific bequest of personal property which would only...