133 Ky. 335 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
In the month of October, 1900, appellee, Christopher, and one John Hill Eakin, both of Nashville, Tenn., became the owners of 3,008 acres of land situated- in Muhlenberg county, Ky. It is not stated in the record what interest each owned in the land; but it has been treated by counsel-for the parties as if each owned an undivided half. It appears that John Hill Eakin, in the month of July, 1902, made and executed his last will and testament, that he died in the latter part of the year 1903, / and that his will was duly probated in the month of January, 1904. The
“I desire that the remainder of my estate, real, personal and mixed, be equally divided between my wife and my mother. The portion herein devised to my mother is to be held by the Nashville Trust Company, of Nashville, Tennessee, for her- sole and separate use, and the income arising from same to be paid her quarterly during her life, and at her death to be distributed as follows, viz.: Should my wife eleot-to establish, or, aid^ an already established..lxenevolent or charitable or eleemosynary institution with the larger portion of the estate herein devised to her, then and in that event the portion cf my estate devised to my mother is to be paid over at her death by the Nashville Trust Company, trustee, to the institution above mentioned at such time as my wife may elect to make the donation of her estate, but until such donation is made the Nashville Trust Company, trustee, will pay the income after my mother’s death to my wife. Should, however, my wife not elect during her lifetime or at her death to establish or aid any institution above mentioned, then at her death the portion of the estate devised to my mother to be held in trilst for my mother’s benefit shall at my wife’s death be paid over equally to the Young Men’s Christian-Association and to the First Presbyterian Church, both of Nashville, Tennessee. ’ ’
He named his mother, Louise P. Evans, and his wife, Elizabeth R. Eakin, as his executrices, without bond. It appears that appellee, C. C. Christopher, on the 7th day of September, 1905, purchased the undivided half interest in the survey of land referred to,
The contention of appellants’ counsel, in substance, is that her conveyance to appellee does not have the ■effect to prevent her from hereafter establishing a benevolent, charitable, or eleemosynary institution as referred to in the will; that as such institution is not now in being, and consequently not before the court in this action, there would be nothing to prevent it, after being established, from suing and recovering one-fourth of the land in controversy under the provisions of the will of John Hill Ealdn. They have presented this contention by oral argument and in their briefs with great ability. We deem it unnecessary to discuss all the reasons presented for a reversal of the judgment. It would extend this opinion to an unreasonable length. Therefore, we present, in as succinct a manner as possible, our reasons why the conveyance to appellee is valid .and passes the whole estate in the land to him.
We cannot better elucidate the questions involved than by copying an extract from the opinion of the learned chancellor who.tried the case in the lower court. We quote therefrom a-s follows:
‘‘ By the third clause of the will of J. Hill Eakin the testator devised the remainder of his estate, not previously disposed of, to. bis wife and to his mother. It is provided that the share devised to the mother shall be held by the Nashville Trust Company for her sole and separate use during her life. After the death of the mother the share willed to her, or rather the use of it, is given to the wife for life, it being provided, however, that if the wife should elect to establish or aid a benevolent "or charitable or eleemosynary institution with the larger portion of the share devised to her, then and in that event the portion devised to the testator’s mother for life, and after her death to the testator’s wife, is to be paid over by the Nashville Trust Company to the institution so established nr aided at such time as the wife may elect to make thé donation of her estate. After the death of the mother, and until such donation is made, the Nashville Trust Company is directed to pay the income to the testator’s wife. The clause in question*344 not only gave the wife an interest after the death of the testator’s mother in the share devised to his mother, but it also clearly gives to the wife the power to give' said share to a benevolent, charitable, or eleemosynary institution, provided she should first give to such institution the larger portion of the share first given by the testator to her in fee. This wias beyond doubt a power. The testator, J. Hill E'akin, is the donor of the power. The testator’s wife is the donee. The property affected by the power is that one-half of the testator’s residuary estate which was given by the testator to his mother for life, and after the mother’s death to the testator’s wife, with the power above mentioned ¡attached thereto'. See Bristow v. Shirrow, 27 Beav. 585. In the case cited the testator devised his estate to the same persons to whom his wife should devise her residuary estate. This was held to vest in the testator’s wife a testamentary power of appointment. It is clear that, under the clause in question, the testator’s wife might select a benevolent or charitable or eleemosynary institution by making the donation provided for in her lifetime, or by making such donation by will at her death. The power was special, however, inasmuch as the donee was confined to benevolent, charitable, or eleemosynary institutions. She could not give the estate to any person, nor to any institution except of the kind mentioned.
“Powers are 'either collateral or such as relate to an estate or interest given by the donor to the donee of the power. A collateral power is a bare power given to a mere stranger, who has no interest in the estate or property to which the power relates; e. g., a power of sale given to executors, or a power of*345 appointment such as was given by the testator to Ms wife in Bristow v. SMrrow, 27 Beav. (Rolls Court) 585. ‘A power collateral is of the nature of an authority to deal with an estate, no interest in which is vested in the donee of the power. A power of that Mnd is wholly different-from an estate or interest, and can not without abuse of language be so designated.’ Dickinson v. Teasdale, 1 De Gex, J. & S. 60; Farwell on Powers, p. 8. A power relating to an estate or interest given by the donor of the power of the donee may be either appendant or in gross. The distinction between collateral. powers and such as relate to an estate or interest given by the donor to the donee of the power is chiefly important with respect to the extinguishment or suspension of such powers by the donee. A- power is appendant when the estate created by the execution of the power overreaches, affects, or destroys the interest of the donee. It is in gross when the estate created by the execution of the power is beyond and does not affect the estate or interest of such doñeé. Thus a power of appointment- by will given to a tenant for life is in gross.. The execution of such ia power does not affect the life estate of the donee of the power. A power of sale given to a life tenant is, however, appendant because the ■ execution of such a power overreaches, affects and destroys the interest of the donee. A power simply collateral cannot be extinguished or suspended by any act of the donee. Farwell on Powers, p. 11; West v. Berney, 1 R. & M. 434; Willis v. Shorral, 1 Atk. 474; Sugden on Powers, 893.
“Such a power is not in the nature of a right or interest in the donee thereof, and is given, or supposed to have been given, for the benefit of some third per*346 son. Thus, if a testator gives to his wife power to dispose by will of any fixed portion of his estate among certain named individuals or institutions, giving her at the same time no interest-in the property so to be disposed of, the wife would, in such ease, have simply a collateral power. She would have no interest whatever in the property, and could not by any act or agreement extinguish such power in herself or bind herself not to execute it. Such power is indestructible in its nature, and,, of course, every power coupled with a trust or duty is likewise indestructible. The execution of such last mentioned power is imperative on the donee, and it would be a breach of trust for the donee to undertake not to execute the power. All powers, however, other than powers collateral and powers coupled with a trust or duty, may, be suspended or destroyed, either wholly or in part, by the donee thereof. Farwell on Powers, p. 15; Sugden on Powers, p. 82; Coke’s Littleton, p. 265; Bird v. Christopher, Stiles, 389; Albany’s Case, 1 Co. Rep., 110; Noel v. Henry, McCle. & Yo. 302; West v. Berney, 1 R. & M. 431. This rule applies also to those cases in which the donee of the power is confined or limited.in his choice to certain classes of individuals or to certain institutions. Smith v. Death, 5 Mad. 371; King v. Melling, 1 Vent. 225; Coffin v. Cooper, 2 Dr. & Sm. 365; Bickley v. Guest, 1 R. & M. 440. In Smith v. Plummer, 17 L. J. Ch. 145, certain property was settled on the husband and wife sucessively for life, and after their death to their children, as they should by deed jointly appoint, and, in default of such an appointment, as the survivor should by deed or will appoint. No appointment was made by deed*347 during the joint lives of the husband and wife. The wife died, and the husband, being’ the survivor, had a life estate and power to appoint by deed or will, according to the terms of the original settlement. In 1842 the husband released his power by deed. After-wards, in 1843; he made a will purporting to exercise the power. As he was in the first instance given an interest for life in the property, to which was attached a power, the court held, that he could by deed or contract bind himself not’ to execute the power, and that his release of it’ in 1842 was valid and binding, and the will subsequently made in exercise of the power was held to be inoperative. Such powers as are not merely collateral and such as are not coupled with a trust or duty may be released, extinguished or suspended by express agreement or by implication, Any dealing with the property inconsistent with the exercise of such power will operate as an implied release or extinguishment of the power. Hurst v. Hurst, 16 Beav. 372; Davies v. Huguenin, 1 H. & M. 730; Isaac v. Hughes, 9 Eq. 191; Green v. Green, 2 Jones & L. Ch. 529; Re Chambers, 11 Ir. Eq. 518; Cunningham v. Thurlow, 1 R. & M. 436; Smith v. Houblon, 26 Beav. 482; Boyd v. Petrie, 7 Ch. 385; Young v. Roberts, 15 Beav. 558.
‘ ‘It was provided by act of Parliament in England January 1, 1882, that even collateral powers might be extinguished or suspended by the act of the donee, so that now in all the countries in which that act applies the donee of any power, except such as is coupled with a trust or duty, may suspend or extinguish the same by express agreement or by implication. In this State, however, I take it the rule is the same as it was in England prior to January 1, 1882. As*348 heretofore stated, the rule as it then existed permitted the donee of the power, which related to property an interest in which was given to the donee, to extinguish or suspend the power by express agreement or by implication. All powers other than powers collateral and powers coupled with a trust or duty, may be suspended or destroyed, either in whole or in part, by the donee thereof. The power given by the third clause of the will of J. ITill Eakin to his wife over the moiety or his residuary estate, which was devised to the testator’s mother for life, and after her death to the testator’s wife, subject to the power above mentioned, was clearly not a collateral power, nor was it a power coupled with a trust or duty. It was a power which related to an estate or interest given by the donor to the donee of the power, and it was appendant because its execution would at' feet or destroy the interest of the donee. Such a power the donee clearly had the right to release or extinguish, and this she has done, both expressly and by implication. The deed to Christopher, in the first instance, was clearly an implied release of the power. It was a dealing with the property in question inconsistent with' a subsequent execution of the power, The general principle is that it is not permitted to one to defeat his own grant. One may not so deal with the estate over which he has a power, other than a power collateral or a power coupled with a trust or duty, as to create interest inconsistent with the exercise of his power. West v. Burney, 1 R. & M. 431.
“I think the title of Christopher is good and sufficient, and that the demurrer to the petition should be overruled. ’ ’
It will be noticed that the will provides that the Nashville Trust shall hold the one-half interest devised to the mother for life for her benefit, and upon her death for the benefit of the widow for life, and at her death the trust company is to pay it over to the First Presbyterian Church and the Young Men’s Christian Association, provided the widow does not elect and establish one of the institutions named in the will, in which event the trust
For these reasons, the judgment of the* lower court is affirmed.