Cain v. Cain, 127 Ala. 440

127 Ala. 440 | Ala. | 1900

►SHAlil'E, J.

Formal parts omitted, tlie will of Thomas Y. Gain, who died m September, 1899, is as follows :

“1. I give all both real and personal property to my wife, Nancy Jane Gain, for her to have and control all that I have and control, all that 1 now or may hereafter be possessed, of, for her to collect all rents and debts and control the same as I myself might if living; to pay all just debts, if any; and the said Nancy Jane Cam, my wife, to have and to hold all that 1 may be possessed of at my death; to sell and convey any property she may choose for her support or comfort, as she may see proper during her natural life, and at her death what may be left of my said estate the -same to be divided according to law m such cases made and provided; and 1 hereby appoint and establish my wife, Nancy Jane Gain, my executrix of this my last will and testament, and that she shall not be required to give bond whatsoever for the faithful carrying out of this trust.”

The terms of this will import a conveyance to Mrs. Gain of a life estate in the testator’s property together with a power to dispose of the same inter vivos, which is unqualified unless m respect of the purpose for which it is given. ' The title she may -convey is not confined to .her life interest, but extends t-o the absolute estate-in so much of the property as may be -subjected to- the power. This appears not merely from the language of the express grant, but also by implication from the direction given for dividing only “what may be left” at- Mrs. Gain’s death. Such a phrase when used in -directing a' disposition of property which is to -succeed an estate for life, will, when its significance is not altered by something else, imply in the life tenant a capacity to convey the absolute as distinguished from the life interest; — See McRee’s Admr. v. Means, 34 Ala. 349, and authorities there collated.

That under the devise in question Mrs. Gain may by •conveying cut off any future estate we do not understand to be questioned, but the complainant’s contention is that her power is not general and extends to only so much property as will -suffice for her support and comfort. If the will is to be construed as conditioning the power to sell upon a necessity for providing support and comfort, that the complainant’s position is well supported by authority. In Hilliard Real Prop. Chap. 57, section 9, it is laid d-own that “A devise to one for life with power to sell if necessary for his comfortable support, creates a life estate with a contingent power, and a party claiming under a sale by the devisee must prove that the contingency has happened.” And decisions to life effect are found in Hull v. Culver, 34 Conn.403; Minot v. Prescott, 14 Mass. 490; Larned v. Bridge, 17 Pick. 339; Stevens v. Winship, 1 Pick. 318. By those authorities a power so contingent can only be exercised in proportion to the necessity; but we are of the opinion that the power given by this will does not rest upon such a contingency. If the testator had so meant, it would have been easy and natural for him to have expressed that intention. In the sentence “to sell and convey any property she may choose for her comfort and support as she may see proper,” the word choose seems to have been used as synomymous with wish, or desire, rather than to imply a mere right of selection; and by such use together with the omission of all reference to her necessities, it appears that the testator'intended to invest his widow with full discretion in determining the occasion for selling, as well as the selection of property to be sold. We hold that though the power is expressed to he for a purpose, its exercise is bounded only by the donee’s judgment and discretion in fulfilling that purpose, and that her discretion is not subject to be controlled by the courts.

The bill is not strengthened by anything in section 1046' of the Code. The statute embodied in' that section recognizes that an absolute power of sale residing in a life tenant of land may of right be exercised to dispose of the fee, and protects the remainderman only to the extent that the power is not exercised.

The decree will be reversed and one will be here rendered dismissing the bill.

Reversed and rendered.