Bilderback v. Boyce, CASE No. 989

CASE No. 989 | S.C. | Mar 8, 1881

The opinion of the court wete delivered by

McGowan, A. J.

The late Ker Boyce departed this life in 1872, leaving a will whereby he devised the hotel in the city of Charleston, known as the “Merchants’ Hotel,” to James P. Boyce, J. B. O’Neall, A. G. Rose and J. A. Whitesides, executors, m trust, to permit his son, Samuel J. Boyce, to take the income for his own use and maintenance during his n'atural life, and after his decease to the use of such person or persons as he, by his last will, might appoint, and in failure of such appointment, to his children or their issue then living, &c. James P. Boyce, alone, accepted the trust, and, soon after the death of the testator, took possession of the premises, collected the rents and paid over the same to the said Samuel J. Boyce.

Samuel J. Boyce died in 1877, leaving surviving him his two sons, James Spann Boyce and Latimer Boyce, and a daughter, Mary Lane, wife of Joseph A. Bilderback, who died after the death of her father, Samuel J., leaving a will, by which she devised her interest in the said hotel to her husband, J. A. Bilderback.

Samuel J. Boyce left a will, by which he provided as follows: 1. “I direct that all mv just debts be first paid.” 2. “I give and bequeath one moiety of all the rest and’residue of my estate whatever and wherever to my beloved wife, Mary E. Boyce, to and for her absolute use and behoof forever.” 3. “ I give, bequeath and devise the other moiety of all the rest and residue of my estate, whatever and wherever, to my brother, James Pi Boyce, to hold in trust for my children, Mary Lane Bilderback, wife of Rev. J. A. Bilderback, Latimer Boyce and James Spann Boyce,” upon the terms and conditions therein expressed.

This was a proceeding for possession of the said hotel, instituted by the children of Samuel J. Boyce against James P. Boyce, as trustee, and Mary E. Boyce, widow of Samuel J. Boyce, alleging that the power of appointment given to their father, Samuel J., was never executed, and that his interest for life having ended, they are entitled to the said premises as remaindermen under the will of their grandfather, Ker Boyce. The defendants resist the claim, alleging that the will of Samuel J. Boyce, although in general terms, without any reference to the power, was a good execution of the power, and that the hotel, in common with his own property, passed under it for the purposes therein declared, and, among others, for the payment of his debts.

It was referred to Master Porter to hear’ and determine the issue, and he held “that the will of Samuel J. Boyce is a valid execution of the power of appointment vested in him by his father’s will in relation to the Merchants’ Hotel. That if the Merchants’ Hotel passes under the will of Samuel J. Boyce, it passes charged with his debts, and that if it does not pass under his will it goes to his children under the will of Ker Boyce.” The plaintiffs filed exceptions, which were argued before Judge Thomson, who sustained the exceptions, and decided that the will of Samuel J. Boyce was not a valid execution of the power under the will of Ker Boyce, and that the children of Samuel J. Boyce are tenants in fee of the Merchants’ Hotel under the will of Ker Boyce. To this decree the defendants filed exceptions, and the appeal comes to this court.

The question made has often been before the courts in England and in most of the states of the Union, but it is said that it is now presented for the first time in this state. The precise point is whether a mere power to declare by will uses in a lot of laud is duly executed by a will in general terms disposing of the whole estate of the donee of the power without any reference in terms to the power or the property and where the donee’s own property satisfies the terms of the will.

All the authorities agree that this is a question of intention. Samuel J. Boyce had the power to appoint by will. He made a - will disposing of his whole estate. Hid he intend thereby to execute the power as to the hotel ? Intention is a matter of fact and must be readied through the will itself. In order to facilitate the inquiry as to the intention in such cases, the Court of Chancery in England, after much division and many efforts, at length settled certain rules to be followed. Without going into the learning involved or attempting to review the numerous cases upon the subject, we content ourselves with a reference to those rules as stated in'the case cited in the decree, of Doe d. Nowell v. Roake, 9 E. C. L. 497, which was carried by writ of error to the King’s Bench, (11 E. C. L. 653; 5 B. & C. 720); and from the King’s Bench to the House of Lords, where the judgment of the King’s Bench was affirmed. 19 E. C. L. 139. In that case it was solemnly decided that the court would infer an intent to execute a power only in three cases. First, where there was some reference in the will or other instrum'ent to the power. Seeond, or reference to the property which is the subject on which it is to be executed. Third, or where the provision in the will would have no operation except as an execution of the power. According to this canon of interpretation, the power in this case was clearly not executed. The Merchants’ Hotel is not mentioned in the will of Samuel J. Boyce, nor is the power referred to, and the terms are satisfied by the property which he left, without including that as to which the power existed.

But it is strongly urged upon the court that as the point involved is now for the first time to be decided in South Carolina, we are not complicated by previous decisions, and are at liberty to make a rule of our own — that the old rule of the English chancery should not be followed by us, for the reason that in its operation there it was not entirely satisfactory, resulting often in defeating instead of carrying out the intention. It is true that some eminent English judges have expressed themselves to that effect, and for this or some other reason laws have been passed in England which declare “ that a general devise of real or personal estate in wills should operate as an execution of a power of appointment of the testator over the same, unless a contrary-intent should appear in the will.” 7 Wm. IV.; 1 Viet., c. 26, § 27. These statutes are certainly not of force as law in this state, but the principles and practice of the old English chancery, announced and followed by the great masters of equity, Somers, Hardwicke, Eldon and others, have been generally regarded with the greatest respect and as the highest authority, if not absolutely binding upon us. The Court of Chancery was originally established in South Carolina while a province of Great Britain, in 1721, and was “empowered to have and exercise the same jurisdiction in hearing, adjudging and determining all causes and suits in equity in as full and ample a manner as any Chancellor, Court or Courts of Chancery in America can, may or ought to do.” While the rigid enforcement of the rule of construction before referred to may have, in some instances, run counter to the actual intention, which sometimes happens in the application of other rules for the construction of wills, we do not appreciate the objection to the full extent urged. Upon such a subject it is necessary to have rules, otherwise we should be absolutely at sea. The execution of a power is not an ordinary matter, but is out of the usual course of things. It is incumbent upon the donee of the power to do the act; if not done, certain consequences of importance follow; and it would seem to be in accordance with the analogies of the law, that those who claim under the appointment should be held to show satisfactorily that it was made. In a large majority of cases testators dispose only of their own estate. These wills, which embrace also the execution of powers, are exceptions to the rule. When, therefore, a testator having property leaves a will, disposing of it in the*' usual manner, without any reference to a power, the inference, in the absence of other proof, is that the will is not one of the exceptions, but, as it purports, disposes only of the estate proper of the testator. If the will were intended to refer to and accomplish a matter so remarkable as the execution of a power, the part intended to make the appointment would naturally be separate and distinct from the other parts. “ Every instrument executing a power should mention the estate or interest disposed of; and it is best to declare it to be made in exercise of the power, and the formalities required in the execution of the power must appear on the face of the instrument.” 4 Kent 329.

In most of the states of the Union which have no legislative enactments on the subject, there has been, as we understand it, a general acceptance, with some modifications, of the rule followed in the English chancery. These modifications, for the most part, are upon the point of allowing proof of the circumstances under which the will was executed, so as to allow it to be read in the light of those circumstances. The cases are not in accord, and we will not encumber this opinion by referring to them. If there can be said to be a distinct American doctrine upon the subject, we do not know that it is anywhere better stated than by Judge Story in Blagge v. Miles, 1 Story 426, cited in a note to 2 Eq. Jur., § 1062. In that case the rule of construction before referred to was stated, and the judge, in commenting, says: “ The authorities on this subject may not all be easily reconcilable with each other, but the principle furnished by them, however occasionally misapplied, is never departed from, that if the donee of the power intends to execute the power, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it is doubtful under all the circumstances, then that doubt will prevent it from being deemed an execution of the power.”

We are content to take this as the result of all the American authorities, which declares that the intention to execute must be apparent and olear, so that the transaction is not fairly susceptible of any other interpretation. Taking this as our guide, did Samuel J. Boyce intend, by his will, to execute the power in reference to the Merchants’ Hotel ? His will makes no reference to tiie power or the property — it contains no expressions such as are usually employed in executing powers, but only the words of ordinary disposition, providing first for the payment of debts, &c. The testator had property of his own which fully satisfied the terms of the will, which, from anything that appears on its face, might have been prepared by one who had no knowledge of the power or the existence of the hotel. Before deciding the question whether the property as to which the power existed, passed under the will of Samuel J. Boyce as part of his own estate, it is proper to inquire what the power of appointment was — whether it was part of his “ estate ” in such sense as under that description alone it would pass under the will. Samuel J. Boyce never had any estate in the Merchants’ Hotel. It belonged to his father, who gave it to trustees “ to permit his son, Samuel J., to take the income for his own use dv/ring his natural lije, with power of appointment, and in failure of such appointment, to his children.” The remaindermen in esse under the will of Ker Boyce took a vested interest, subject to be divested by the execution of the power. Williman v. Holmes, 4 Rich. Eq. 476. The power could be executed only by will, which took effect at the death of Samuel J., when his interest even in the income ended; so that at the time the will took effect the testator had no property interest whatever in the hotel. We do not agree that the distinction taken between property and power is a distinction entirely without a difference. This case affords a good example of a naked power as distinguished from property. “The distinction, although nice, is completely established lie-tween a gift to one indefinitely, with a general power of appointment superadded,. and a gift to one for life with like power of appointment. In the former case the estate passes absolutely to the donee, and in the latter case an estate only for life to the donee with the power of appointing the inheritance or succession, which must be exercised to be effectual.” Scott v. Burt, 9 Rich. Eq. 360; Aaron v. Beck, Id. 412; Wilson v. Gaines, Id. 421; Pulliam v. Byrd, 2 Strob. Eq. 141; Bradly v. Westcott, 13 Ves. 445.

In the case before us, not only was the gift to trustees definite, being for life, but the power of appointment was limited to will. The donee could not appoint to his own use.

The words in the residuary clause are very comprehensive, “ whatever and wherever,” but they do not reach to the hotel, for the reason that they refer, in terms to the testator’s “ estate.” The expression “ all the rest and residue of my estate, of every nature and kind,” in Blagge v. Miles, was said to be incapable of passing property over which testator had only a power. “These words mean that the testator does not intend to die intestate as to any part of his estate, and they generally mean nothing more.” Lupton v. Lupton, 2 Johns. Ch. 623.

Looking at the terms of the will and all the surrounding circumstances, it does not appear that the intention of Samuel J. Boyce to execute the power under his father’s will is “apparent and clear,” and we think the transaction is fairly susceptible of the interpretation that he meant to dispose of his own estate and not to execute the power as to the Merchants’ Hotel.

As this court takes the view that the power under the will of Ker Boyce was not executed by the will of Samuel J. Boyce so as to dispose óf the hotel, it will not be necessary to consider what would .have been the result as to the payment of the debts of Samuel J. Boyce under the first clause of his will if the power liad been well executed.

The judgment of the Circuit Court is affirmed and the appeal dismissed. .

Simpson, C. J., and McIyer, A. J., concurred.