Young v. Sheldon

• Decision Date: 02 February 1904
• Citation: 139 Ala. 444,36 So. 27
• Parties: YOUNG v. SHELDON.
• Court: Alabama Supreme Court

36 So. 27

139 Ala. 444

YOUNG v. SHELDON.

Supreme Court of Alabama

February 2, 1904

Appeal from Circuit Court, Lauderdale County; Thos. R. Roulhac Judge.

Suit by Mollie Young against M. B. Sheldon, administrator of W. B Young, deceased. From a judgment in favor of defendant plaintiff appeals. Affirmed.

R. T Simpson, Jr., and Paul Hodges, for appellant.

John B. Weakley, for appellee.

TYSON J.

The plaintiff, in order to recover in this case, must, of course, have the legal title. She predicates her claim to said title upon item 3 of her grandfather's will, which is in these words: "I give to my beloved wife Hetty D. Jones, who is my sole executrix, all my lands, negroes, and stock, in short all my property of any description, after the payment of all my just debts, etc., and my youngest son Daniel A. Jones receives his portion heretofore mentioned, during her lifetime to manage at her control or as she may think best for herself and her children in future, to contract debts and pay them out of the property as she may deem expedient, or to sell off the property as she thinks proper during her lifetime, and at her death--I want all the effects that she has in any way, lands, negroes and property of any kind whatever to be sold at public sale to the highest bidder and the proceeds or dues of said sale to be equally divided between my four children," naming them. It is in right of the four children named, as remaindermen--she being their sole surviving heir at law--that her contention is based on for recovery. Assuming that a remainder was created, it is clear that the gift over was intended to operate simply on such of the property as was unsold by Mrs. Jones at her death, since Mrs. Jones had an absolute power of disposition by sale of any or all of the property devised to her. Conceding the applicability of section 1046 of the Code of 1896, without deciding that it has application to the provisions of the will quoted above, prior to its enactment, where the devise was one for life, with absolute power of disposition, the first taker took the absolute fee, free from the limitation over, and the remainderman took nothing. The limitation over attempted to be created in such cases was void for repugnancy. Flinn v. Davis, 18 Ala. 132; Alford's Adm'r v. Alford's Adm'r, 56 Ala. 350; Hood v. Bramlett, 105 Ala. 660, 17 So. 105; Ide v. Ide, 5 Mass. 500; King v. Beck, 12 Ohio 390, 474. And this is still the law as to creditors and purchasers. So far as their rights are involved, the first taker is still the owner of the fee. As said in Hood v. Bramlett, supra: "Section 1850 [1046] of the Code is no more than a statutory recognition of this doctrine, so far as purchasers and creditors are concerned; but it changes the rule, where rights of purchasers and creditors do not supervene, in respect of, and only in respect of, future estates limited upon the life estate of the donee of the power, and, to estates thus limited, provides, in effect, that, unless the power of disposition is exercised by the tenant for life or years, they shall be executed and vested in title, possession and enjoyment in the remainderman upon the death of the tenant of the particular estate. But the ulterior estates thus protected must rest upon express limitations, and not upon mere implication."

It affirmatively appears that Mrs. Jones, in whom was reposed the power of sale of the fee of the lands, in 1867, sold them to the defendant's vendor, Mrs. Cobb, who paid the purchase money and went into possession, and executed to her a warranty deed conveying a fee-simple estate. It is true, it is also made to appear that Mrs. Jones had, prior to the execution of this deed, intermarried with one McClaren, and was his wife at the date of its execution. Its validity is challenged upon the ground that her husband did not join with her. It is doubtless true that no valid conveyance of Mrs. Jones' estate in the land could have been made by her alone. Section 1984, Code 1852 (section 2373, Rev. Code 1867). Since she is dead, and the only estate that she took by virtue of the will was a life estate, the questions presented are: (1) Whether she could, without the consent or concurrence of her husband, execute the power conferred upon her to dispose of the fee; and (2) does it appear that she intended to execute it?

Before answering these questions, it may be well to say, and not to assume, that a mere power, collateral or in gross, was conferred upon Mrs. Jones to dispose of the fee. 1 Sugden on Powers, p. 106, also pages 183, 184, and note; Kents' Com. (13th Ed.) p. 317; 2 Wash. on Real Property, p. 691; 22 Am. & Eng. of Law (2d Ed.) 1155, 1156.

It is thoroughly well settled that at common law a married woman could, without the consent or concurrence of her husband execute a power, whether appendant, in gross, or simply collateral, notwithstanding her disability to dispose of her own estate. And it is of no consequence whether the power was granted to her before or after she became a married woman. 1 Sugden on Powers, pp. 181, 182; Kents' Com. p. 325; 2 Wash. on Real Property, p. 317; 22 Am. & Eng. Ency. of Law (2d Ed.) 1106, and notes. This principle is stated by Mr. Sugden in this language: "By the common law, a married woman could not dispose of her own estate without a fine and recovery, for which the statute law has now supplied a deed, with certain formalities; but, simply as the instrument or attorney of another, she could convey an estate in the same manner as her principal, because the conveyance was considered as the deed of the principal, and not of the attorney, and her interest was not affected. * * * It is not material whether the power is given to an unmarried woman who afterwards marries, or to a woman while she is married, or upon her marriage, and she survives her husband, and afterwards takes another; in all ...