Whitfield v. Burke

• Decision Date: 05 June 1905
• Citation: 38 So. 550,86 Miss. 435
• Court: Mississippi Supreme Court
• Parties: NEWTON W. WHITFIELD ET AL. v. IRENE S. BURKE ET AL

38 So. 550

86 Miss. 435

NEWTON W. WHITFIELD ET AL. v. IRENE S. BURKE ET AL

Supreme Court of Mississippi

June 5, 1905

FROM the chancery Court of Lowndes county, HON. JAMES F. McCOOL Chancellor.

Whitfield and others, the appellants, were complainants in the court below; Mrs. Burke and others, the appellees, were defendants there. From a decree in defendants' favor the complainants appealed to the supreme court. The facts are stated in the opinion of the court.

Decree affirmed.

R. C Beckett, and J. J. McClellan, for appellants.

It is to be borne in mind that the intention of the creator of a power, if compatible with the law, is to govern, whether the power be raised by deed or by will, and that where the power is raised by a contract the intention of the parties is to control. Heirs of Capel v. McMillan, 8 Port., 205; Wilson v. True, 2 Cow., 195; Jackson v Veeder, 11 Johns, 169; Mitchell v. Maupkin, 2 Tiedeman, 185; Guion v. Pickett, 42 Miss. 77; Smith v. Taylor, 21 Ill. 296.

The intent is generally to be ascertained from the instruments, although in some cases reference may be had to the circumstances under which the power was created. Heirs of Capel v. McMillan; Smirk v. Taylor, supra.

Where the purpose of a power is known, it will be so construed as to affect the purpose; thus where there is a power to raise portions for children or to pay debts, the court will incline against that construction which would leave children unprovided for or the debts unpaid. Taylor v. Harwell, 65 Ala. 1.

A power appended to a life estate will not enlarge it into a fee. Sugden on Powers, 65; Andrews v. Bruinfield, 32 Miss. 115.

In executing a power, the donee thereof must show that he acts thereunder, for if left in doubt it will be resolved to the contrary. Story, Eq. Jur., sec. 1062a, note 1.

In this case the remainderman, as well as the life tenant, were devisees under the will. The life tenant's power to sell, by virtue of the exercise of which the appellees claim, is expressly limited to the contingency that the life tenant, William H. Whitfield, should desire to sell the real estate devised to him for the purpose of purchasing other lands or other productive property, the proceeds of the property sold to be invested in other productive property, with limitations over to his children, the appellants.

The bill alleges that the conveyance executed by William W. Whitfield was not executed for the purpose of reinvestment of the proceeds of the sale in other property, as named in item fifteen of said will of William Whitfield; nor were the proceeds of said sale, as a matter of fact, invested in other property, as named in item fifteen of said will of William Whitfield. These allegations of the bill are admitted by the demurrer. 11 Am. Dec., 178; Williams v. Berry, 8 Howard, 495; Baxter v. Bond, 15 S.W. 875; Cleveland v. Bouren, 27 Barb., 252; City Council of Augusta v. Radcliffe, 66 Ga. 469; 4 Lead. Cas. in Am. Law of Real Property, 46.

Newnan Cayce, and E. T. Sykes, for appellees.

That no duty rests upon the purchaser regarding reinvestment of proceeds in such case as is presented by the bill herein, see following authorities: 3 Redfield on Law of Wills, p. 235, sec. 12; 2 Perry on Trusts, p. 450, sec. 801; 2 Story's Eq. Jur., p. 369, sec. 1127., note 2; 2 Story's Eq. Jur., p. 376, secs. 1134 and 1135; Tyler v. Herring, note, 19 Am. St. Rep, 281; Elliott v. Merryman, 1 Lead. Cas. in Equity, p. 123, et seq.

OPINION

MAYES, Special J.^[*]

In the year 1854 William Whitfield died, leaving a will, by the eighth article of which he devised to William W. Whitfield, his son, certain lands in Lowndes county, for the term of his natural life, with remainder to the children of the devisee. The fifteenth article of the will contained the following language: "Nevertheless, I hereby authorize my sots, if they desire, or if either of them are desirous, to sell the real estate devised to him for the purpose of purchasing other lands or other productive property, . . . to sell the real estate . . . for the reasons before given, and the title shall be good to the purchaser. The proceeds of the sale, however, is to be invested in other productive and valuable property, and is to be held under the limitations and conditions of all the property so held by them."

The bill in this case alleges that the said William W. Whitfield alienated the lands so devised to him, in the year 1859, by a deed, the terms of which purported to convey the fee, and that the defendants to the bill held by subsequent conveyances under that deed. The bill also alleges that William W. Whitfield died in the year 1903, and that complainants are the remaindermen entitled under their grandfather's will. It avers, among other things, as follows: "Complainants further show that this conveyance executed by William W. Whitfield to the said James W. Sykes was not executed for the purpose of reinvestment of the proceeds of the same in other property, as named in item fifteen of such will of William Whitfield, nor were the proceeds of such sale, as a matter of fact, invested in the other property, as named in item fifteen of such will of William Whitfield." This bill was demurred to. The chancellor sustained the demurrer, and from such decree an appeal was allowed to this court, on the prayer of complainant, to settle principles.

The controlling question presented is whether in a case where, by deed or will, the life tenant is invested...