130 Va. 175 | Va. | 1921
delivered the opinion of the court.
On May 5, 1881, Robert P. Davis, of the county of Orange, State of Virginia, acknowledged' before witnesses the following will, which after his death in 1885 was duly probated :
“In the name of God, I, R. P. Davis, of the county of Orange and State of Virginia, being of sound mind, but in feeble health, and knowing the uncertainty of human life, do make this my last will and testament, and do hereby revoke any and all' my former wills and testaments:
“First: I desire all my just debts, together with my funeral expenses, to be paid out of my estate, whether real or personal, as my executrix may deem best.
“Second: After the payment of my just debts and funeral expenses, I give to my beloved wife, Octavia Davis, all of my estate, both personal and real, for her sole use and benefit so long as she lives, and not to be subject to any debts, claims or demands of any future husband she may marry, and at her death to be disposed of as she may deem proper and think best.
*178 “Third: I do hereby appoint my beloved wife, Octavia Davis, executrix of this my last will and testament, and having the fullest confidence in her, I desire that no security be required of her by the court.
“This given under my hand and seal this the 5th day of May, 1881, and signed in the presence of two witnesses, whose names are annexed to this paper.
“ROBERT P. DAVIS (s. s.)”
On October 27, 1913, his wife, Octavia Davis, then Octavia Nelson, acknowledged as required by law her will, which is herewith reproduced in part:
“I, Octavia Nelson, of the county of Orange, in the State of Virginia, do make this my last will and testament, hereby revoking all wills and codicils heretofore made by me at any time.
“After the payment of all my just debts and funeral expenses— ' ■
“First. I give and devise unto my great-nephew, Hugh G. Burruss, who has for many years resided with me, the tract of land on which I now reside, situated in the county of Orange and known as ‘Linden,’ it being my intention by this devise to include all the land attached to the original tract owned by me, as well as any and all additions which have been purchased by me at any time during my occupancy at any time.
* * * * * * ' * * * *
“Eleventh. For the purpose of carrying into effect the provisions of this will, my executor hereinafter named is vested with full power and authority to sell any real and personal estate of which I may die seized (save that devised under the first clause of this will to Hugh G. Burruss), and to convey the same in proper manner, and the pur*179 chasers thereof shall not be held liable to see to the proper application of the purchase price of any real or personal property so sold.
“Twelfth. I nominate and appoint H. A. McCurdy, of the city of Richmond, as executor of this my last will and testament, and should he qualify as such, I request the court to allow him to do so without security.
“In testimony whereof, I have hereunto set my hand, at Orange, in the county of Orange, in the State of Virginia, this twenty-seventh day of October, in the year nineteen hundred and thirteen.
“OCTAVIA NELSON.”
In the year 1916, Mrs. Nelson acknowledged the following codicil to this will:
“I, Octavia Nelson, do make this codicil to my last will and testament, heretofore executed by me and bearing date on the twenty-seventh day of October, in the year nineteen hundred and thirteen.
“First. Save as hereinafter designated, I hereby confirm my said will of 27th October, 1913, and the provisions of the same.
“Second. Having by said will devised unto my great-nephew, Hugh G. Burruss, the farm on which I reside and' known as ‘Linden/ together with the other lands attached, I now give and devise unto the said Hugh G. Burruss, all the personal property of every description on or about the said farm, including all household and kitchen furniture, jewelry, furniture, fixtures, live stock of every description; all crops growing or severed, all farm machinery and implements, and in general all and every article of personal property owned by me on or about the said farm, whether the same be herein particularly described or mentioned.
*180 “Third. I hereby ratify and confirm all deeds, executed by me for real estate sold in the city of Richmond and elsewhere, the title to which I acquired under the will of my husband, R. P. Davis, and desire to yest in said purchasers and their assigns a fee simple title to said real estate, and my executor is hereby vested with full power and authority to execute and deliver to said purchasers and their assigns such further assurances of said real estate as may be required or found necessary.'
“Fourth. I hereby revoke the tenth clause of my said will, wherein Octavia McDonald is made residuary legatee under the same.
“Fifth. The rest and residue of my estate I give and devise unto my great-nephew, Hugh G. Burruss.
“In testimony whereof, I have hereunto set my hand and seal this the 29th day of August, in the. year 1917, at Orange in the State of Virginia.
“MRS. OCTAVIA NELSON (SEAL).”
By her will the testatrix devised to her great-nephew, Hugh G. Burruss, a tract of land in Orange county, known as “Linden,” this tract including the original tract owned by Robert P. Davis, and a tract purchased by the testatrix in her lifetime containing about 138 acres. By the codicil to her will the testatrix left certain personal property on “Linden” to said Burruss, and made him her residuary devisee. Burruss died unmarried, intestate and without issue, before the death of the testatrix.
In February, 1918, the testatrix, Octavia Nelson, died, and in due course the above will and codicil were probated. Thereafter, petitioners filed their bill in chancery against Parks G. Kendall and others, her heirs, praying among other things the construction of the will of' R. P. Davis.
The defendants demurred to this bill, and the case was heard upon the bill and exhibits therewith, and the demurrer.
The second paragraph of this will contains the testator’s disposition of his estate, and is as follows:
“Second: After the payment of my just debts and funeral expenses, I give to my beloved wife, Octavia Davis, all of my estate, both personal and real, for her sole use and benefit so long as she lives, and not to be subject to any debts, claims, or demands of any future husband she may marry, and at her death to be disposed of as she may think proper, and deem best.”
The Circuit Court of Orange county entered a decree on November 26, 1919, holding that Octavia Davis took an absolute estate under the clause, supra, in the real and personal property of the testator. From the decree containing the foregoing ruling, sustaining the demurrer, and dismissing complainant’s bill, an appeal was allowed, thus bringing the entire matter before this court for review.
On the part of the appellants it is insisted that under the will of her husband Octavia Davis took a life estate, coupled with a power of appointment, and that having failed to execute this power as to a portion of the estate devised by her husband, the appellants are entitled to such portion, as the heirs-at-law of the said R. P. Davis.
The appellees maintain that this is a case in which the life estate is metamorphosed into an estate of inheritance by virtue of the rule announced in May v. Joynes, 20 Gratt. (61 Va.) 692, and other cases preceding and following that case.
Another feature of this case to be noted, is that the entire estate given is for the benefit of the wife. It is given for her uses and purposes. No criticism can be made of the finding that a fee was primarily given. The precise language of the testator, supra, is cited in this connection for reference hereafter: “I give my wife, subject to the provisions hereinafter declared, my whole, estate, real and personal, and especially all real estate which I may hereafter acquire, to have during her life, but with full power to make sale of any part of said estate, and to convey absolute title to the purchasers, and use the purchase money for investment, or any purpose that she pleases, with only this restriction, that whatever remains at her death shall, after paying any debts she may owe, or any legacies she may leave, be divided as follows: * *•”
In addition to May v. Joynes, many other cases are cited by the appellees in support of their contentions. These cases will be reviewed.
Missionary Society v. Calvert, 73 Va. (32 Gratt.) 357: This case is plainly May v. Joynes. The property is given to the wife for her natural life, or widowhood, followed by a provision that so long as the devisee remains the testator’s widow, she is at liberty to receive from his executors, or his estate, such part of it as she may choose and to appropriate
In Carr v. Effinger, 78 Va. 197, the husband bequeathed his wife five shares of stock, with specific directions 'with respect to selling same, and loaning, or investing, the proceeds. Later in his will he uses these words: “At the death of my wife, what bonds she may not have'used, I give to my sisters.” By necessary implication this will gave the legatee the right to use for her purposes these bonds in their entirety, thus giving her the absolute power over same, carrying the absolute property. The limitation over is avoided. Plainly, this too is May v. Joynes, without any new features.
In the case of Cole v. Cole, 79 Va. 251, the words construed were: “I give to my wife all my estate during her lifetime, and at her death half of the personal property that may be on hand, to do with as she may see proper.” The words, “that may be on hand,” inevitably implied that the testator intended that his wife might appropriate for her uses in her lifetime the entire personal estate. Hence, this is another case in which the absolute power to use and dispose of personal property afforded the legatee an absolute
In Hall v. Palmer, 87 Va. 354, 12 S. E. 618, 11 L. R. A. 610, 24 Am. St. Rep. 653 the language construed was: “I
In Bowen v. Bowen, 87 Va. 438, 12 S. E. 885, 24 Am. St. Rep. 664, the testator devised his property to his wife “for and during her life,” coupled with a provision that she might sell and convey the real estate, and receive the purchase money, and buy and sell with the proceeds such property for her own comfort and convenience las she might choose, without accountability to any one, adding these words, “in fact during the life of my said wife, I wish her to possess and enjoy the said property as if she enjoyed a fee simple and absolute estate.” After stating that the “intention of a testator is to be gathered from the words used to express that intention,” the court, concluded, conformably to established principles, that the wife was given the absolute title, and the remainder was void for repugnancy.
This frequent reference in the cited cases to the intention of the testator plainly shows that the language used is construed to pass the fee, because the words of the testator indicate that intent, the whole matter, as stated by one authority, resting upon his intent. The limitation over is avoided,
“However inartificially a testator may express himself, yet if his intention can be discovered to mean a disposition of his whole estate in the thing devised, the court will supply such words as may be necessary to effectuate this intention.” Shermer v. Shermer, 1 Wash. (1 Va.), 266, 1 Am. Rep. 460.
“The estate being the testator’s to give, his will is the law of the subject, unless that will be against the law of the land.” Burwell v. Anderson, 3 Leigh (30 Va.) 357.
In Farish v. Wayman, 91 Va. 430, 21 S. E., 810, the court was confronted with no new situation. The court held that ”a devisee to A for life, but should she die and leave no child, in that case the property devised, or what remain of the same, to go to B,” gave to A by necessary implication an unlimited and unrestrained right to the use of the entire property, Which is a fee. The absolute power to use is the absolute power of alienation, and vice versa.
In Davis v. Heppert, 96 Va. 775, 32 S. E., 467, the deed to be construed conveys the land in question to a trustee to be held for the sole use and benefit of Mary G. Hendrick for and during the term of her natural life, and after her death to be conveyed to such child, or children, of Mary Hendrick as shall be living at the time of her death, provided that if the said Mary Hendrick should desire, she shall have the power for her sole use and benefit to sell and dispose of the property through her said trustee.” No new question is presented in this case, and Mary Hendrick plainly took an equitable fee.
The right of Mary Hendrick to use the entire estate did not depend upon necessary implication, though such implication often provides this right. It was directly afforded
Another case of a fee with an attempted limitation over is Brown v. Strother, 102 Va. 145, 47 S. E., 236, which holds a,s follows: “Under a devise or bequest to two persons of. all I possess on earth for their support to be used in no other manner, followed by a gift over, ‘if there is anything left after their death’ the first takers are entitled to the whole, and the gift is void.” This case is obviously May v. Joynes in substance.
The same comment may be made upon Hawley v. Watkins, 109 Va. 122, 63 S. E. 560. In that case the first clause of the will gives the testator’s sister a fee simple in certain property. The second clause is as follows: “I desire that the circuit court appoint a trustee to receive the said sum of money for the use and. benefit of my said 'sister, the said money to be advanced to her as she may need it. Should any of the said money be in the hands of said trustee at the death of my said sister, my desire is that the same be equally divided between X and Y.” Held, that the sister took an equitable fee in the real estate, and a full equitable ownership in the personalty. The court rested its decision in this case upon the fundamental principle that where “an absolute property is given to one, with an unlimited power to dispose of it, express or implied,” a disposition of any unused property remaining at the death of the first taker is void.
In Rolley v. Rolley, 109 Va. 449, 63 S. E. 988, 21 L. R. A. (N. S.) 64, a. husband devised to his wife “all of his property to be used and enjoyed by her during her life, or widowhood, in such quantities as may be necessary for her comfortable maintenance,” with a limitation over of the unconsumed portion. Strictly in conformity with May v. Joynes, this language was held to pass a fee, and the limitation over was avoided.
The mere statement of the finding of the court in Randall v. Harrison reveals its likeness to May v. Joynes. “A gift of a life estate, with power to the donee to use any and all of the principal, vests in the first taker a fee simple in the lands, and an absolute estate in the personal property as given, and a gift over of what may be left is void.” Randall v. Harrison, 109 Va. 686, 64 S. E. 992,
Hansbrough v. Trustees of Presbyterian Church is akin to May v. Joynes in its facts. A wife was devised property, “to have and to hold the same for her personal use and benefit, and to use the whole of said estate during her life, if she can thereby promote her happiness, and the welfare of our loved ones.” Provision was made in the will for any unused balance. Held: That the wife was expressly given the absolute power of disposition, hence, she took a fee, Hansbrough v. Trustees of Presbyterian Church, 110 Va. 15, 65 S. E. 467.
In Crutchfield v. Greer, 113 Va. 232, 74 S. E., 166, the devise of the wife to the husband was in the following comprehensive and sweeping terms: “Should I die without heirs, (i. e., children), the entire property I own is to go to my beloved husband (G. M. Helms), to dispose of as he may wish.” Plainly this language passes a fee simple. The court held as follows: “When an estate is given with the absolute power of disposition, either express or implied, it comprehends everything, and. the donee takes the fee. Any
Taylor v. Johnson, 114 Va. 329, 76 S. E., 325: This case on the facts, and in respect of the decision, is closely akin to many prior cases, the court holding that an express life estate, without limitation oyer of the remainder, and unlimited power of disposition, givés the grantee a fee simple. In this case there is no limitation over; otherwise it is May v. Joynes.
Goodloe v. Woods, 115 Va. 540, 80 S. E., 108: In this case a life estate was given, coupled with the power afforded by the following language, “to be disposed of by them at their deaths, as they may think proper.” The court held that these words did not limit the power of disposition over the reversion to a disposition by will, but that a deed executed and delivered by the first takers in their lifetime was a valid execution. This ruling, however, was pure dictum, as it appears that precisely the same ruling had been made years before in the trial court. This ruling, no appeal having been taken, established the law of the case, rendering unnecessary (and it is so stated in the opinion) any ruling on the above point by the court. 115 Va. 544-5-6, 80 S. E., 110, 111. But the precise question of whether Samuel F. Woods, the life tenant, would have taken a fee, if the power had not been executed at all, was not considered or decided. Nor was it held, even as a dictum, that the tenant of a life estate, with power to dispose of an estate at death by will, or by deed in the lifetime to be effective at death,
In Avant v. Cook, 118 Va. 1, 86 S. E. 903, the wife devised to her husband all her real estate, “to have and to hold to himself in his own individual right, with full power to control the same as he may elect, or to sell and convey the same to any person, or persons, whatsoever, and to use the proceeds ¡as he may elect during his natural life, with remainder to others, in case he did not dispose of the property during his life.” This so plainly creates a fee, and the limitation over is so plainly void according to May v. Joynes that comment is unnecessary.
In Smith v. Smith’s Executor, 122 Va. 341, 94 S. E. 777, the testator “gave and devised all of his estate, real and personal, to his wife, for and during her natural life, to be used and enjoyed by her as she shall think proper, as fully as if the same were hers, in fee simple, and at her death, it is my will that my. said estate shall pass to, and be equally divided amongst all my children then living, etc.” • No new question is presented here. The testator expressly gives to the life tenant absolute power over his estate, “as fully as if the same were hers in fee simple,” and then provides for a limitation over. This is May v. Joynes pure and simple, and it is to be noted that the court, in its opinion, states the doctrine anew, as if it had not been formulated many times, thus emphasizing the precise limits within which it should be restrained.' At that time Honaker v. Duff, 101 Va. 675, 44 S. E. 900, had been decided, and is referred to in the opinion. The court held in Smith v. Smith, that “Where the limitation is of a life estate, but there is given full power of disposition over the fee, which is conferred without limitation or restriction as to time, mode, or purpose, of its exercise, such full power of disposition would serve to enlarge the life estate expressly given into a fee simple by implication.”
Steffey v. King, 126 Va. 120, 101 S. E. 62, is merely May v. Joynes, the court holding, that “taking the'language of the will as a whole, there is no escape from the conclusion that Mr. Kasey intended to give his wife the absolute power of disposal during her lifetime, and therefore, under the decisions, the remainder over was void.”
Riddick v. Cahoon, 4 Rand. (25 Va.) 547: In this case an estate was given by will to A and his heirs, and if he should die without issue living at his death, then so much of the estate as remained undisposed of by A to go to B. 'This was held to lodge a fee in A. Plainly, by necessary implication, A was given authority to dispose of the entire estate in his lifetime. Thus he had that power of absolute disposition which is the eminent quality of absolute property.
Burwell’s Executor v. Anderson, 3 Leigh (30 Va.) 348: “From the earliest time, it has been among the received doctrines of the common law that an absolute and unqualified power of disposing, conferred by will, and not controlled or explained by any other provision, should be construed as a gift of the absolute property. In this the law but corresponds with the dictates of common reason. Every man of ordinary capacity would understand a power to dispose of a thing as he pleased, as a gift of the thing itself; and hence, every one who uses the phrase without qualification, is understood by the law as intending a gift. The power of absolute disposition is, indeed, the eminent quality of absolute property.”
Melson v. Cooper, 4 Leigh (31 Va.) 409: The testator gave his son, William Cooper, a plantation, to him and his heirs forever. Further, the testator provided, that if the said William should die without a son, and not sell the land, he gave the land to his son George. Directly, in one sentence, and by necessary implication, in another, William was given the power of absolute disposition, that is, the powers of a fee simple owner. William took a fee, and the limitation over was void.
In Goodwyn v. Taylor, personal property was involved. The court said: “It was rightly argued by the appellant’s counsel that there is no difference between a bequest of a personal thing and a bequest of a use of it with power to dispose of the subject at will; consequently, in the present case the power given to the granddaughter, to whom one-fourth of the certificates was devised, to dispose of the principal to her heirs general, invested her with the whole property in that fourth.” Goodwyn v. Taylor, 4 Call (8 Va.) 307.
In Shermer v. Shermer, the court seems to have reached its conclusions, not so much from the language of the will, as from the prior declarations of the testator, and the fact that the estate disposed of by the will was chiefly derived by his marriage. Said the court: “The.intention is apparent that the wife should have the whole estate for life, and at her death one-half should go to her family and one-half to his. Their relative situation, and his prior declarations, show such intention to be liberal and just. His words have been scanned critically; he does not give her a power to dispose, but to name the persons she might choose to succeed to her part to whom the testator gives the money, and' it is doing small violence to the words, even in their critical meaning, to say that by suffering her legal
Robinson’s Adm’r. v. Brock is another case in which the court gave effect to the equity of the case rather than to the words used in the instrument. A marriage settlement was under consideration, and the question of the ownership of certain slaves was involved. Some of the slaves were originally the property of the husband, some came to him through his wife. On page 230r of the opinion, we find the following: “What then was the true intent and understanding of the parties to this deed at the time it was made, in case there should be no issue to the marriage? The answer to my mind seems plain and obvious that the lands, and certain slaves enumerated in the deed, should (on the death of the survivor) go to the family of Benjamin Robinson, and that the other six (particularly named) and their increase should go to the family of the said Susana, to-wit, the family of Brock,” etc. Robinson’s Adm’r v. Brock, 1 H. & M. (11 Va.) 212.
The foregoing cases cited by the appellees have been reviewed and analyzed in order that the dissimilarity of their facts from the facts of the case in judgment may be perceived. Those facts afforded the reasons for the conclusions reached. In many of these cases the fee is given expressly, or by necessary implication, for the stated purpose of providing for the support and maintenance of the first taker. In other cases the fee is given directly or by implication, though the purpose thereof is not stated; but the fee, in terms or by necessary implication, is lodged in the first taker without restrictions, and may be simply and readily
As stated in Honaker v. Duff, 101 Va. 675, 44 S. E. 900, the cases are difficult to reconcile, save on the principle of giving free play to the testator’s intention. That intention is the master key. In some of the cases cited, the expressions used are rather broad, and if applied to all situations seemingly akin, would appear to abolish the. doctrine of powers of appointment, and bring about a situation in' which, in all cases of a life tenant holding a power of appointment, his life estate plus the authority to dispose of the donor’s reversion would be so amalgamated as to lodge the fee in the life tenant. Yet this effect is certainly not intended by the “doctrine of May v. Joynes,” for in the case, of Honaker v. Duff, supra, in which the doctrine of May v. Joynes is discussed, a power of appointment is established, and the first taker restricted to a life estate. The conclusions occasionally derived from opinions, and apparently supported by language disconnected from the facts, must be tested by reference to the facts of the cases, for, as Chief Justice Marshall aptly said, “The positive authority of a decision is co-extensive only with the facts on which it is made.”
The will of the testator, R. P. Davis, will be now considered upon the facts of the same, and having reference to the principles announced in the cases heretofore cited,
“A general power of disposition existing as a power does not imply ownership; in fact, the existence of such a power, as a technical power, excludes the idea of an absolute fee simple in the person who possesses the power, though where the power is for his benefit, he has the means of acquiring such right, interest, or title, and in all cases, by the execution of the power, the possession, right, title, or interest, is divested.” Id. 773, and cases cited.
“A power is not an estate, or interest in lands, but an authority to create an estate, or interest.” 31 Cyc. p.. 1038.
“A power is the individual personal capacity of the donee to do something.” Id. 1039.
“A general power of appointment existing as a mere technical power, does not imply ownership, but excludes the idea of any absolute fee simple in the person possessing such power.” Id. 1089.
In the same authority are found general statements of principle under the head of “Powers,” clearly showing that the doctrine of May v. Joynes may be administered without conflicting with the doctrine of powers of appointment. For instance: “Where there is a gift to a person indefinitely, with a superadded power of disposal, the donee takes an absolute estate.” Id. 1089.
“Where the fee is clearly intended to pass, the donee will not be restricted to a life estate.” Id., p. 1091. What is this but May v. Joynes?
In Honaker v. Duff, supra, the testator by a codicil to his will devised his plantation after the death of testator’s wife, to Felix Gray, a trustee for his son Francis, to be held by this trustee for the use and benefit of said Francis and his family during their lives, and then to be willed by the son to whom he might choose. It was contended that Francis took a fee. The court held that the son was the sole beneficiary, the mention of the family being regarded as the expression of the motive of the gift. Further, the son was considered to take a life estate only at his mother’s death, with the power to appoint the remainder by his will. The express life estate was not enlarged by the power of appointment. The court cites with approval the following extract from 4 Kent’s Com., p 319: “A devise of an estate generally, or indefinitely, with power of disposition over it, carries a fee. But when the estate is given for life only, the devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will be an
This is not inconsistent with May v. Joynes, and cases following same. The particular intent to give the life estate in such cases is inconsistent with the general intent to give the first taker the powers of a fee simple owner over the property. The further particular intent to dispose of any unexpended balance is avoided for the reasons heretofore stated.
The following citations are also made in Honaker v. Duff:
“In a note by Judge Burks, in 1 Virginia Law Register, p. 219, Judge Burks says: ‘It cannot be doubted that though property is devised or bequeathed to one for life, even in the most express terms, yet if by other terms in the same instrument it is manifest that the devisee, or legatee, is invested with absolute power to dispose of the subject at his will and pleasure, he is not a mere life tenant, but an absolute owner, for there can be no better definition of absolute ownership than absolute dominion. In such case, the expressed life estate is enlarged into an absolute estate by the intention of the testator deduced from the instrument as a whole. Where, however, an estate for life is given in express terms, the language in other parts of the will, relied on to enlarge that estate into an absolute estate, ought to be very clear indeed to have that effect’.” (Italics supplied.) 101 Va. 681, 44 S. E., 901.
The opinion proceeds: “In 3 Virginia Law Register, at p. 65, there is an article by a writer of acknowledged authority which, after stating that the cases are difficult to reconcile on any other principle than that of giving free play to the testator’s intention, says the subject may be thus summarized:
*200 “(1). Where an express estate for life is given, and a power of disposition over the reversion is annexed, the devisee for life will not take an estate in fee, notwithstanding the power to dispose of the inheritance. The express estate for life negatives the intention to give the fee simple, and converts these words into mere power, which, standing alone, would have been construed to carry an interest.
“(2). When a life estate is given to the devisee, with power of disposition, the devisee is held to take a fee simple, if otherwise the manifest intention of the will would be defeated.”
This is stated to be by way of exception to the first general rule stated, and, as resting on intention, must depend on the construction of the particular will. “Thus where the limitation is of a life estate, but there is given full power of disposition over the fee by deed, or will, without limitation or restriction, as to the time, mode or purpose of its exercise, the devisee may be held to take, not the mere life estate expressly given, but the fee itself by implication,” which is the doctrine of May v. Joynes, supra.
We have quoted freely from this article, not only on account of its intrinsic merit, but because the statement, that where there is a limitation of the life estate, with full power of disposition over the fee by deed, or by will, the devisee may be held to take, not the mere life estate,' but the fee by implication, was relied upon in argument by counsel for appellants as authority to show that in this case Francis Duff took an estate in fee. We have, however, the best authority for the statement that the phrase “by deed, or will” is not to be taken distributively, but as referring to the full power of disposition by both deed and will, as together constituting the full power of disposition over the fee, which, if conferred without limitation
The authorities from which we have cited, including the valuable monograph in 3 Virginia Law Register, supra, clearly establish the distinction between a gift for life, with a power of disposition added, and a gift to one indefinitely, with the power of disposition by deed or will. (Italics supplied.)
These citations .from Honaker v. Duff indicate that the doctrine of powers has not been abolished in Virginia by the doctrine of May v. Joynes but that the two doctrines co-exist in this jurisdiction, and are fundamentally distinguished, the whole matter “resting upon intention.” A life tenant may have a power which he may so exercise, in connection with the grant of the life estate, as to pass a fee for his own uses and purposes, but the donee is not on that account invested with the fee, when the power is mot exercised. If such was the case, Francis Duff would have been held to be the owner of the fee, since for valuable consideration, or for natural love and affection, he might have granted the life estate, and by virtue of his power of appointment, devised the reversion to his grantee, thus in the aggregate passing the entire estate. But the court said in this case: “So far from its defeating the mamifest intention of the will, to hold that the devisee takes a life estate only, and not a fee, it would be in derogation of the apparent intention of the will to enlarge the life estate which is expressly given, into a fee simple by implication.”
The language of the testator in the case in judgment is significant and unusual. He first gives ■ to his “beloved wife,” Octavia Davis, all of his estate, both personal and real, for her sole use and benefit, so long as she lives, and not to be subject to any debts, claims, or demands of any future husband.” In this connection it may be remarked that the estate thus devised for life was a large one, and with reference to the laws as to married women, then existing, it was so devised as to give the wife the complete beneficial use of it for her lifetime, whether she remained his widow or married again. The wife is not given the absolute right “to use the entire estate for any purpose she pleases,” or “to appropriate it as she may deem just and right,” or “to do with it as she may think proper,” or “for her own comfort and convenience as she may choose,” or “to possess and enjoy the said property as if she enjoyed a fee simple and absolute estate,” or the like, either expressly or by inevitable implication; but after the gift of the life estate, a large one be it remembered, for “her sole use and benefit so long as she lives,” the succeeding phrase is, “and at her death to be disposed of as she may deem proper and think best.”
These words obviously are not to be taken literally, since no one could dispose of property in articulo mortis, nor would it seem that they were intended to enlarge the authority of the life tenant over the estate for her benefit'. There are several cases decided in other jurisdictions in which the reasoning of the courts is so precisely conforma
The first of these cases is Wales’ Admr. v. Bowdish’s Executor, 61 Vt. 26, 17 Atl. 1,000, 4 L. R. A. 819. In this case the will provides that the testatrix’s brother should have the use and occupation of an estate during his natural life, and at his death the said estate to be conveyed by the executor to whom, and in the manner, the said brother should indicate. This case, it will be noted, is Honaker v. Duff, save that in the latter case the life tenant could dispose of the reversion by will only. It was contended in this case as in Honaker v. Duff, that the brother took a fee. This contention was based on the ground that the’testator, by the language used, intended to give the brother a greater beneficial use than a life estate, and on the further ground that the brother could convert the entire estate to his own use by a sale of the remainder, and confirmation of the vendee’s title by appointment. In a like roundabout fashion, Mrs. Nelson, in the case in judgment, could have converted the entire estate devised to her own personal use. In relation to these contentions, the court said in the case, supra: “We think the words of the will, construed in the light of the circumstances, do not import a purpose to create in behalf of the brother any greater beneficial use than to be derived by occupancy. * * It is plain that the testatrix’s intention was to provide for the brother’s life support, by the use and occupancy of the property, without interference by creditors, and without the power of disposition in their behalf, or for any purpose whatever, to take effect while the brother lived. * * It is more than unreasonable — it approaches absurdity — to suppose that the testator, the circumstances considered, intended by giving the power of appointment, to give Henry (the brother) the right to con
In Dunning v. Van Dusen, 47 Ind. 423, 17 Am. Rep., 709, the court noted the distinction between the devise of an estate generally, with power to convey the same, and the specific devise in that case, which was as follows: “I give my wife all my property to have and to hold for her life, and to be disposed of at her death at her pleasure.” This case is substantially the case in judgment. The former language was held to create a fee. As to the latter the court ruled “that there was no general devise, but the estate was expressly limited to the life of the devisee, and that to pass a fee, the power must be executed.” The court propounded, but did not authoritatively answer, the query, whether under the language of the will the power could be executed by deed as well as will, or by will only. 47 Ind. 423, 17 Am. Rep. p. 709. In one of the cases cited in the case, supra, that of Henderson v. Vaulx, 10 Yerg. (Tenn.) 30, the testator devised an estate to his wife for life, and at her death to have the disposal of same to whomsoever she might think proper. Held that she took a life estate with a power of appointment. In another case cited, that of Denson v.
The court, in Dunning v. Vandusen, supra, discusses the meaning and effect of the words “to dispose of at her death at her pleasure,” as follows: “This language is susceptible of two constructions. First, as authorizing the devisee at any time to dispose of the reversion, this reversion of the estate so to be disposed of to commence at her death. Second, as authorizing her, “at her death,” to dispose of the reversion. In other words, ‘at her death’ may have reference to the time of the commencement of the estate to be disposed, or to the time when the disposition may be made.” 47 Ind. 430, 17 Am. Rep. 714.
“That the words ‘at her death’ have reference to the time when the disposition might be made, seems to us to be the true one, and the one reflecting the real intention of the testator, but on this point we make no decision, as it is not necessary.” 47 Ind. 430, 17 Am. Rep. 715. “It may be remarked, however, that if it was the intention of the testator that the power was to be exercised at the death of the life tenant, it could not be exercised sooner.” 47 Ind. 431, 17 Am. Rep. 715.
“Perhaps if Mary Craig could not execute the power until the time of her death, it could only be exercised by will. If she could not execute the power until the period of her death, and if, therefore, no instrument but a will could be made effectual for that purpose, it follows that the power must be executed by a will, or not at all. 47 Ind. 429, 17 Am. Rep. 714.
In Borden v. Downey, 35 N. J. L. 74, the court said that “The decisions relating to the subject could not be entirely reconciled, and some of them appeared to turn on subtle
In the case of Ruby v. Barnett (12 Mo. 3), 49 Am. Dec. 112, is found the will of Wm. Horn, which in part is as follows: “First: My will is that my beloved wife, Polly Horn, have all my estate, both real and personal, so long as she may live. Second: My will is that my wife dispose of all of said estate as she may think most advisable at her death. I do hereby appoint my beloved wife, Polly Horn, executor of this, my last will, and it is my wish for her not to give security as my executor.” This language closely resembles that of the will of R. P. Davis, and the interpretation of the same, embodied in the ruling of the court, is cited approvingly in Honaker v. Duff, supra, 101 Va. 682, 44 S. E. 900. Said the court: “The important question in the case is: What estate did Polly Horn take under the will of her first husband; whether an absolute one, or only an estate for life? * * * When the express estate for life is given by will, and a power of disposition is afterwards conferred the devisee takes but a life estate with a power of disposition; and if no disposition is made, the reversion will go to the heirs of the devisor. But if there is no previous devise of the life estate, but a simple power of disposition is be
The words cited, supra: “* * at her death to be disposed of as she may deem proper, and think best,” follow the disposition of the life estate in testator’s property. The initial deposition completed, he doubtless projected his mind forward to the termination of that estate, and the death of his wife. This reminded him that some one should be designated to enjoy the reversion. He had the utmost love for, and confidence in, his wife. His love was manifested by his ample provision for her future maintenance, his confidence evinced by her designation as his executrix, without the usual requirement of security on the executorial bond. Manifestly, he was perfectly willing for this beloved and trusted consort to name the persons to participate in the reversion, and to fix the proportions in which they should take. The very instrument upon which he was then engaged suggested that the power of appointment which he proposed to confer upon his wife would be appropriately discharged by a like instrument. Hence the words, “at her death to be disposed of as she may deem proper, and think best” — words which, in this connection, appear to refer to the persons to be named, and their respective proportions, rather than as affording a wife, then in the enjoyment of a generous provision, authority to dis
This is a gift for life, with a power of disposition added. While, in one view that we have considered, Mrs. Davis could dispose of the reversion by both deed and will, yet she can hardly be said to have énjoyed a full power of disposition conferred without limitation as to time, mode, or purpose, of its exercise. Any deed that she might have made would not have been effective to pass the entire estate until her death. The devisees in the cases that have been reviewed, and which illustrate the doctrine of May v.
Upon the whole, we conclude that it was not the intention of the testator, in the case in judgment, to give the wife more than a power of appointment as to the reversion, and that power not having been exercised as to the property in question, the same passes by inheritance to the heirs of the testator. Having reached this conclusion the decree of the Circuit Court of Orange county must be reversed, and this case remanded for further proceedings, not inconsistent with the principles and conclusions herein announced.
Reversed.