Whitfield v. Thompson

• Decision Date: 27 March 1905
• Citation: 38 So. 113,85 Miss. 749
• Court: Mississippi Supreme Court
• Parties: WILLIAM W. WHITFIELD ET AL. v. JOHN G. THOMPSON ET AL

38 So. 113

85 Miss. 749

WILLIAM W. WHITFIELD ET AL. v. JOHN G. THOMPSON ET AL

Supreme Court of Mississippi

March 27, 1905

FROM the chancery court of Clay county, HON. HENRY L. MULDROW Chancellor.

Whitfield and others, appellants, were complainants, and Thompson and others, appellees, defendants in the court below. From a decree in favor of defendants, the complainants appealed to the supreme court.

The bill of complaint charged that they were the children of W W. Whitfield and the only grandchildren of Wm. Whitfield that Wm. Whitfield died in the year 1854, possessed of large bodies of land, then in Lowndes county, now Clay county; that he had three children--W. W. Whitfield, John A. Whitfield and Lucy A. Whitfield; that John A. and Lucy A. Whitfield died intestate, leaving no issue; that said Wm. Whitfield executed a last will and testament, which was duly probated and recorded (the material parts of the will are set out in the opinion of the court); that the land in controversy was a part of the land owned by Wm. Whitfield at the time of his death, but was no part of the land specifically devised in the will, but was a part of the residuum; that it was never deemed necessary by the executors to exercise the power never deemed necessary by the executors to exercise the power of sale over it given by item twelve of the will, and that there never was any pretense of a sale of it by the executors, and as the power was never exercised, it had lapsed; that by item thirteen the lands were devised to the executors, with express and direct order to sell and reinvest the proceeds in other property, to be held for life by the children of Wm Whitfield, and at their deaths to his grandchildren; that, after the death of John A. Whitfield, W. W. Whitfield and Lucy A. Whitfield, instead of seeking a sale of the lands for the purpose of reinvestment of the proceeds, exercised their right of election, and took the lands, as was their right; that said W. W. and Lucy A. Whitfield took possession of the lands and rented and mortgaged them for loans of money, thus clearly expressing their right of election in kind to take the property itself as an investment; that they wanted to sell the land, but no one would buy it, because they could not make title, and they allowed it to be sold for taxes so as to get a semblance of title; that designedly and purposely the lands were permitted to be sold for taxes, and were purchased at the tax sale by W. W. Whitfield in the name of his wife, she having no knowledge of the sale and not furnishing any money to buy the lands; that, having this pretense of title, they sold it, and appellee, Thompson, bought that land in controversy under a deed made by the wife of W. W. Whitfield. The prayer of the bill was for the cancellation of this deed as a cloud on the title of complainants, and that the title be quieted and declared in complainants, and for rents.

Affirmed.

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

In construing any power granted by the will, we must look to the whole will in order to get the real intention of the testator, and we look to the final disposition made of the proceeds of the sale, in particular, to determine what the intention of the testator was as to whether there should be a sale before distribution or not; and if the disposition made by the testator of the proceeds of the property make it necessary that the property should be sold, then the power of sale is imperative, though the same may appear in the language of the granting clause of the will to be in the discretion of the executors. This very question has been before the courts repeatedly, and in all cases, so far as we have been able to find, the courts hold that, even though the language of the will would imply a discretion on the part of the executors as to the making of the sale, yet, if the final disposition of the proceeds requires a sale to be made before distribution, then the discretionary power applies only to the time when the sale should be made; but it will be considered that the sale must finally be made, and thus work conversion. Wurtz v. Page, 19 N. J. Eq., 365, 375.

"The doctrine of equitable conversion has its origin in the maxim of equity, that that is regarded as done which should be done. It is only an application of that maxim to a certain class of facts. The future duty is the present deed. The duty may arise also because a sale and conversion are indispensable to the execution of the testator's scheme. In such a case the main end includes all means necessary to its accomplishment. Whatever conflict there may be among the adjudications on this question in the application of the doctrine to the different state of facts, that conflict does not affect the doctrine itself." Penfield v. Tower, 1 N. D., 216-223.

"The direction may be expressed; it may be implied; it may necessarily result from the other provisions of the will because indispensable to their execution; and in the last case the conversion results on the principle that the testator must have intended that everything should be done essential to the execution of his scheme." Penfield v. Tower, supra; Perot's Appeal, 102 Pa. St., 235; see note, exceptions to the rule, Ford v. Ford, 5 Am. St. Rep., 144.

"Where a will contains a power of sale, not mandatory in terms, but it is apparent from the general scope and tenor of the will that the testator intended his realty to be sold, the power of sale should be held imperative, and the doctrine of equitable conversion applied." Dodge v. Williams, 46 Wis. 70-97; Gould v. Taylor, 46 Wis. 106; Dodge v. Pound, 23 N.Y. 69; Craig v. Leslie, 3 Wheat., 563; Cook v. Cook, 20 N. J., 373.

Mr. Whitfield had a very valuable estate, and he dealt with it in detail, and with very great care undertook to dispose of all of his property, impressing his will and intention as to how every piece of property he owned should be finally disposed of. When the court has determined what was the intention and purpose of the testator, it will so construe the will as to uphold and carry out the will and purpose of the testator, if the same is not in conflict with law. 4 Leading Cases in the American Law of Real Property, 35; 1 Ib., 57, 58, 59; Perkins v. Sank, 81 Miss. 358, 362.

"In noting cases of the enlargement of devises without words of limitation, from life estates to fee simple, it is of course hardly necessary to say what has been, in effect, said over and over again, but perhaps never better than by the court in Gulliver v. Poytz, 3 Wilson, 141." "Cases on wills may guide us to general rules of construction; but unless the case cited be in every respect directly in point and agree in every circumstance, it will have little or no weight with the court, which always looks upon the intention of the testator as the polar star to direct it in the construction of wills." 1 Leading Cases on the American Law of Real Property, 59.

Applying the principles above set forth to the provisions of Mr. Whitfield's will, now under consideration, we find that we are not to be guided solely by the language used in the first part of item twelve of the will; it apparently leaves it to the discretion of the executors as to whether or not there shall be a sale; but we must look to the whole of clause twelve and other parts of the will to find the real intention of the testator. When we look to the disposition made by Mr. Whitfield of the proceeds of the property authorized to be sold in item twelve, we find that he provided that the same should be divided into two parts: One-half should be divided equally among three children, to be held by them absolutely; the other half of the proceeds, if not otherwise consumed, . . . "I direct my executors to invest, or so much of said other half as may be left in their hands unappropriated, in some active and productive property, of which each one of my said children is to have one-third, to be held under the limitations and conditions before set forth."

When we consider all the provisions of item twelve, together with the general scope and scheme of the whole will of William Whitfield, we can but reach the conclusion that it was the intention of the testator that these lands mentioned in item twelve should be sold by the executors and invested as directed in items twelve and thirteen of the will. If this was not done, the scheme and intention of the testator would not be carried out. If such was his intention, then there was an equitable conversion, and the title to these lands passed under the provisions of the will, which gave to the life tenants a life estate, with the remainder over to appellants. 7 Am. & Eng. Ency. Law (2d ed.), 465; Wurtz v. Page, supra; Burr v. Simms, 1 Whorton (Pa.), 252, 261.

J. G. Millsaps, and A. F. Fox, for appellees.

In reaching a determination of the matters at issue in this case several steps may be considered as fully established: That no special devise of the lands in question was made to any one; that the land in question was dealt with in the will by giving a power to the executors to sell; that pending the execution of this power the title vested and rested in the heirs at law. We do not understand the counsel for appellants to make any contention that this was not true; but, in any event, the matter is thoroughly settled by the courts (Cohea v. Jemison, 68 Miss. 510; Jackson v. Burr, 9 Johnson, 104; Jackson v. Schauber, 7 Cowan, 187; Morse v. Bank, 12 L. R. A., 62; 1 Williams on Executors, 549, 550, and note); that the power given to sell the residue lands was never exercised. This is set out in the bill of appellants.

These steps establish the legal title to the land in question in the heirs at law. Then the only question that...