Owen v. Switzer

• Decision Date: 31 January 1873
• Citation: 51 Mo. 322
• Parties: RUSH C. OWEN, Appellant, v. SAMUEL SWITZER, Respondent.
• Court: Missouri Supreme Court

51 Mo. 322

RUSH C. OWEN, Appellant,

v.SAMUEL SWITZER, Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Greene Circuit Court.

Plaintiff asked declarations of law to the effect “That said Louisa T. Campbell under the said will took but a life estate in said lands; that her deed to Holland conveyed only a life estate, and such other as she had inherited from her children, who had died since her husband's death and before the delivery of said deed; that plaintiff was entitled to recover the lands sued for, except such portions of the same as Louisa T. Campbell had inherited from her children.” * * * * Which instructions the court refused to give, and plaintiff excepted. The court then declared the law as follows: “That the deed from Louisa T. Campbell to Colby B. Holland, red in evidence by defendant, passes the fee of the estate in controversy to Colby B. Holland.

McAffee, Phelps & Mitchel, for Appellant.

When Louisa T. Campbell made this deed to Holland, she had a life estate in the land, and was an owner of an undivided interest in fee simple, as a tenant in common with her children. She executed a simple deed without reference to the will or any power in her vested, or reference to her fiduciary capacity. What is the legal effect of this deed? Was it an execution of the power which respondent claims is contained in the will, authorizing her to dispose of the fee?

The uniform test is, that if the deed would be wholly inoperative unless taken in execution of the power, the maker will be considered as having intended to execute it, although no reference to the power is made. But if there be any legal interest on which the deed can attach, it will not execute the power. (2 Washburn Real Property, 2 Ed., page 324; last clause of section.) 1 Sudg. Pow., (Ed. of 1856), top p. 454-5-6-7, 477; 2 Sto. Eq., § 1062; (6th Ed.) 4 Kent's Com., 334-335; Doe vs. Roake, 5 B. & C., 720, 731-2, and last clause of opinion on page 734. (This opinion was affirmed in the House of Lords.) Hazel vs. Hagan, 47 Mo., 280-281; Blagge vs. Miles, 426, 1 Story, 446-447. This case Mr. Kent ays, is a leading case in America on Execution of Powers, as is the case of Doe vs. Roak a leading case in England. Mory, Administrator of Michael vs. Michael, 18 Maryland, 227; see ee vs. Vincent, Cr. Eliz., 26; Bradish vs. Gibbs, 3 Johnson's h., 551. In Hay vs. Mayer, 8 Watts, (Pa.) 203; Collier will case, 40 Mo., 287, 328, 329, 330; Pease vs. Pilot Knob Iron Co., 40 Mo., 124.

The deed of Mrs. Campbell to Holland in the case at bar, is operative without being taken in execution of the power; it passed the life estate devised to her by the will, and also the interest she had inherited from her daughter, Mary Sprowl, who died without issue before delivery or execution of the deed to Holland. And the fact of the deed of Mrs. Campbell being a warranty deed, cannot change the rule and test contended for by appellant. The deed in Pease vs. Pilot Knob Iron Company, 49 Mo., 124, was a general warranty deed; see also, Hay vs. Mayer, 8 Watts, 203.

And while the authorities generally agree that “it is a question of intention as to whether a power is executed or not, still, they also agree that the intention to execute 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., 446, and authorities before cited.)

In this case the intention can only be gathered from an inspection of the deed itself, and it will hardly be contended that any evidence can be found upon the face of the deed of an intention to execute a power.

Hardin & Ellis, for Respondents.

The following provision in the will, raises a power in the Executrix, Mrs. Campbell, to sell the lands belonging to the estate in order to pay its debts.

“I do hereby appoint my dearly beloved wife Louisa T. Campbell, my whole and sole executrix, to this my last will and testament, to manage and control as she may think proper, my just debts first to be paid.” (2 Sto. Eq., § 1246; 2 Jarm. Wills, 512, et seq;Foster vs. Craige, 2 Dev. & Bat., 209; 1 Sto. Eq., 428, et seq.)

The will contains the following language:

“I do hereby will and bequeath to my wife, Louisa T. Campbell, all my property, real and personal, monies and effects of whatsoever nature they may be, owned by me or belonging to me, during her natural life, to use, manage, and dispose of as she may see proper, though the property is never to go out of the family in any other way than to pay debts, or for the ordinary expenses of the family.” This clause vested in the wife absolutely a fee simple title to the lands, or it conferred on her power to raise money to pay debts, and support the family. It amounts to a charge on all the property, and raises a trust in her which constitutes a power coupled with an interest. (12 Curtis, 240-3; 14 Curtis, 539; 1 Gray, 567; 17 Mo., 117.)

Under this clause she had a life estate, coupled with a power to convey a fee simple for the payment of debts and support of the family. (Norcum vs. D'Oench, 17 Mo., 99.)

The use of the words, “dispose of” in conferring a power, authorizes the donee of the power to execute a deed in tee simple. (Ruby vs. Bartlett, 12 Mo., 1; Norcum vs. D'Oench, ubi supra.)

A deed purporting to convey a fee, executed by one having a life estate with power to dispose of the fee, will be held to be made by virtue of the power, although the power is not referred to in the deed. (Blagge vs. Miles, I Sto., 427.)

In the opinion in that case, Judge Story says the question is one purely of intention. “If the donor of the power intends to execute, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. This language and rule were adopted by this court in the Collier Will case. (40 Mo., 330, and 47 Mo., 280.)

This is a question of intention whether the party meant to execute the power or not; formerly it was sometimes required that there should be an express reference to the power; but that is not necessary now. The intention may be collected from other circumstances, as that the instrument includes something the party had not otherwise than under the power; that a part would be inoperative, unless applied to the power,”

When a deed cannot operate but as the execution of a power, it will be so held. (Reilly vs. Chouquette, 18 Mo., 229.)

The true and only reasonable doctrine is the one laid down by Sugden, in his “Comments on Sir Edward Clevis' case.”“An intent, apparent on the face of the instrument, to dispose of all the estate would be deemed a sufficient reference to the power to make the instrument operate as an execution of it, inasmuch as the words of the instrument could not otherwise be satisfied.” (1 Sugden Powers 460-461, and 468;)

The deed from Mrs. Campbell to Holland, purports to convey not a life interest, but a title in fee; the words cannot be satisfied otherwise than by referring the deed to the power.

This being a question of intention, as manifested by the deed, we must presume that the grantor intended to do that which she actually did, viz., convey the fee; such being the intention, it can only be satisfied by a reference to the power.

It is contended that unless a deed would be wholly inoperative, it will not be considered an execution of the power.

But the difference between a deed wholly inoperative, and one partially inoperative, is a difference only in degree, and not in principle.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment brought by the appellant against the respondento to recover a tract of land in Springfield, Greene County, Missouri. The answer of defendant admitted the possession of the land named, but denied the other allegations of the petition. Both parties claimed title to the lands in controversy through John. T. Campbell, (now dead,) the appellant as an heir, and through the heirs and devisees under the will of said Campbell. The respondent claims through a deed purporting to convey the land in controversy to Colby B. Holland, executed by Louisa T. Campbell, the widow of the said John T. Campbell and the executrix of his will, and by deed from said Holland to respondent.

It was admitted by the parties, that John T. Campbell died in 8152, leaving eight children and one grand-child as his only heirs. That Louisa T. Campbell, th widow, died the 28th of May, 1866; that three of the children died without issue before the death of their mother, and that the widow never again married.

It was further admitted that three of the children conveyed their interest in said land to appellant since the death of their mother, and that Mary Sprowl, one of the children died without issue before the execution of the deed to Holland by said widow through whom Respondent claims title to the land sued for. There is no question about the facts in this case. The rights of the Respondent depend upon the construction of the last will of John T. Campbell, and the deed from the said widow to said Holland. It is contended by the Respondent, that by the last will of said Campbell, a power was conferred on the said Louisa T. Campbell, his widow, to convey the land in controversy in fee simple to such person as she might choose, and that the deed executed by her to Holland, was a good execution of that power, and had the effect to convey the title to said lands in fee simple to him.

If these propositions are true, the court below properly rendered judgment in favor of the Respondent. If they are not true, judgment should have been rendered in favor of the appellant, and the judgment rendered, should be reversed.

The will of Campbell was as follows:

“1st. I do hereby will and bequeath to my dearly beloved wife, Louisa T....