11 S.W.2d 423 | Ky. Ct. App. | 1928
Affirming. Affirming.
L.A. Fowler died testate in August, 1878, survived by his widow, Laura S. Fowler, and their two infant children, Sanders and Bertie. Bertie Fowler married John P. Campbell, and the appellant, John P. Campbell, is her only child. She died intestate after attaining the age of 21 years, and long after her death the widow, Laura S. Fowler, died.
The will of L.A. Fowler, dated July 1, 1878, contained these provisions:
*550"Second, I herein bequeath and devise to my beloved wife, Laura, all of my estate, both real and personal, held jointly with others and individually for the separate use of herself and my two children, Sanders and Bertie, with power in my said wife to sell and convey or dispose of any part of said property, and reinvest the same as she may deem for the best interest of the estate. . . .
"Seventh, Should either or both of the children arrive at the age of twenty-one years before the death of my wife, it is my wish that my wife pay to said children as they respectively arrive at age, an interest to each, of one-third in all of the estate undisposed of. If one of the children should die before said children arrive at the age of twenty-one years, the interest of the said child dying shall survive and go to the child living."
The will also contained an appointment of testator's wife as trustee in the management and control of funds arising from life insurance policies for the benefit of the two children, to be paid to them equally on arrival of each at the age of 21 years.
The son, Sanders A. Fowler, and the grandson, John P. Campbell, are the surviving beneficiaries of the will of L.A. Fowler.
The question now presented is the duration of the power conferred on the widow by the Will of L.A. Fowler to sell and convey certain real estate devised by the will. The children were both of age in 1889. The widow made a conveyance of the parcel of land involved to Albert C. Wahl on June 17, 1926, giving her source of title as the will of L.A. Fowler, dated July 1, 1878. This action was instituted by the appellant, John P. Campbell, for a judicial sale of the land conveyed to Wahl and a division of the proceeds among the owners. It was alleged that the appellant, John P. Campbell, and the appellee Sanders A. Fowler each owned an undivided one-third interest therein, derived from the will of L.A. Fowler, and that the appellee Albert Wahl owned a like one-third interest therein derived from the deed to him by Laura S. Fowler. A demurrer was sustained to the petition as amended, and plaintiff declined to plead further, whereupon the action was dismissed. The plaintiff prosecutes this appeal.
It is argued for appellant that the power of sale conferred by the will was of limited duration, and expired by implication when the youngest child reached the age of 21 years. The power to sell and convey the land and reinvest the proceeds as she deemed best for the interest of the estate was conferred upon the widow by the second section of the will, and its duration is not thereby limited. The argument that the power ended when the youngest child arrived at the age of 21 years is deduced *551
from the seventh section of the will, which expressed a wish for, a distribution of "all of the estate undisposed of" when the children arrived at the age of 21 years. It is also insisted that by necessary implication the power ceased when the purposes for which it was created had been accomplished. Morse v. Hackensack Savings Bank,
The allgations of the petition are controlled by the exhibits filed with it (Durham v. Elliott,
The duration of a power of sale, granted by a will or other instrument, depends upon the intention and purpose of the donor, as derived from the terms of the instrument itself The test is not what the testator intended to say, but what he meant by the terms he chose to employ. Weedon v. Power,
If an ambiguity be found in the instrument, when considered as a whole, resort may be had to the facts and circumstances for light in the solution of the problem. It is the general rule that such powers persist until the purposes of their creation are consummated. 31 Cyc. 1051.
It will be observed that the will of L.A. Fowler devised the property to his wife, Laura S. Fowler, for the separate use ofherself and the two children, Sanders and Bertie, "with power in my said wife to sell and convey or dispose of any part" thereof, "and reinvest" the proceeds as she might "deem for the best interest of the estate." The Supreme Court of the United States, in Phelps v. Harris,
It is true that the seventh section of the will expressed "a wish that my wife pay to" each of the children as they respectively reached maturity a "one-third in all the estate undisposed of," but we do not deduce from such a precatory provision any intention to modify, destroy, or limit the duration of the power so comprehensively and positively bestowed on the widow by the preceding section of the will. Cf. Gross v. Smart,
It is also urged that the deed to Albert C. Wahl was not intended as an exercise of the power conferred by the will, but only as a conveyance of the one-third undivided interest of the grantor, Laura S. Fowler. Payne v. Johnson,
The deed purported to convey a boundary of land specifically described, gave the source of grantor's title as the will of L.A. Fowler, and contained a covenant of general warranty. That was plainly sufficient to identify the conveyance as an execution of all the power derived from the will of L.A. Fowler. Hankins v. Columbia Trust Co.,
It is further insisted that the disposition of the property was not "for the best interest of the estate," but solely in the interest of the grantor, and for that reason was obnoxious to the purpose of the testator, and in excess of the power delimited by his will. It was for the donee of the power to reinvest the proceeds as she might "deem for the best interest of the estate," but we see no ground for the argument that the deed to Wahl was in excess of the power, or was affected by the subsequent duties of the donee. The consideration received from Wahl was for the benefit of the three parties designated by the will, and there is no allegation that it was diverted, or that it is not yet available for a proper application to the purposes of the donor of the power.
There is an allegation in an amended petition that Laura S. Fowler undertook to purchase from appellant his undivided one-third interest, and that both the donee of the power and the other beneficiary treated the interest of the children of L.A. Fowler as an undivided one-third in fee simple. The construction of the interested parties is a circumstance in favor of a similar construction, if an ambiguity be found in an instrument, but even then the fact is not conclusive (40 Cyc. 1127), and has no *554
place in a case where no ambiguity arises. The conduct and construction of the interested parties may be examined as an aid in clearing an ambiguity, appearing in a written instrument, but it is never resorted to for the purpose of producing an ambiguity, where none exists in the instrument itself. The matters mentioned were not inconsistent with what was done by the donee, or with what we have decided in this case. 13 C. J. sec. 517, p. 546; Violett v. Violett,
It is clear that the deed from Laura S. Fowler to Wahl conveyed the whole title, and the appellant must be remitted to the remedies he may have against the estate of the donee of that power for an accounting to him for his portion of the proceeds of the sale, or for any abuses by the donee of the power that may have adversely affected his interests.
The judgment is affirmed.