196 Ky. 745 | Ky. Ct. App. | 1922
Opinion of the Court by
Reversing.
On April 7, 1885, William M. Irvine, who resided at Richmond, Kentucky, executed his will. Tie died in the-early part of April, 1891, and his will was duly probated on the 6th day of April of that year. He was married
The heading and the introductory clause of the will of William M. Irvine says:
“I, William M. Irvine, of Richmond, Madison county, Kentucky, do make and declare this to be my last wiil and testament and do hereby revoke all former wills.
“It is my will that my wife, Elizabeth S. Irvine, shall have .all of my estate, real and mixed, .and personal, as my sole heir, and I do hereby appoint her my executrix, and request that the court of the county shall not require any inventory of my estate, or any security on her bond as executrix of this my last will.
“In the event, however, that she my wife, dies intestate and without making any disposition of my estate •then I provide that my estate shall -be divided as follows.”
In succeeding clauses he disposed of specific property to specified devisees and provided that appellant, William Irvine Greenway, should .be his residuary legatee, and “anything left after paying all above legacies to descend to him,” He then added:
“Now, byway of explanation, I make all of the above legacies subject to the approval, alteration or change, in part or in whole, of my wife Elizabeth S. Irvine, except the legacies to my half-brother, John S. Harris, these I require to be paid at her death.”
Mrs. Elizabeth S. Irvine after prefacing her will with a short biographical sketch of herself began it by saying: “Being of sound mind, do this day, June 1st, 1915, make and ¡subscribe to this -last will and testament, revoking all other wills. I am empowered by my husband, William M. Irvine’s last will to make any changes in that instrument I might desire, and I shall proceed to to so in this writing.” Her will was written by herself and is a very long one and towards its close she wrote a memorial in these words: “And now my task is done, I
This contest is between appellant William Irvine Greenway on the one side and appellee David I. White and his son David Irvine (White) on the other side as to who is entitled to the two hundred (200) acre farm, the settlement of which requires an interpretation of the portions of the two wills which we have inserted above in the light of other portions of the wills and the circumstances and surroundings of the parties. Appellant contends, (1) that the will of William M. Irvine devised all of his property absolutely and in fee simple title to his wife and that the subsequent attempt by him therein to confer the property upon others with the power in his wife to make a different appointment of it by her will was void and that as residuary legiatee of Mrs. Irvine he is entitled to the farm; but, if mistaken
It appears in the pleadings that appellee, David Irvine (White), since the death of Mrs. Irvine, by a duly prosecuted court proceeding in the county of his residence in the state of Missouri changed his name from David Irvine White to David Irvine, ¡and there is some question made about the timeliness of that action kt order to entitle him to the benefits of the second clause of William M. Irvine’s will, ¡but the conclusion we have reached as to the merits of the case makes it unnecessary to enter into a discussion of that question.
■Coming now to the principal questions for decision and taking up the first contention (1), it may be admitted that some of the earlier decisions, including perhaps seme from this court, under the ’ ancient common law doctrine that there could be no 'limitation upon a fee held that where a will or other instrument of conveyance gave an estate absolutely to one with express or implied power of unrestricted disposition the estate could not be reduced by any subsequent provision of the instrument; but the courts generally, including this one, have long since come to the conclusion that the rule requiring the intention of the maker, either of a will or deed, as gathered from the entire instrument to prevail,, overshadows and dispenses with the .ancient technical common law rule and that where it appears from the-entire language of the will or deed that it was the intention of the maker to limit the estate given or granted to less than an absolute one, that intention will prevail, ITence, it may be -s-aicl that this court has. consistently, since the ease of Clay v. Chenault, 108 Ky. 77, held that where one clause of the instrument was broad enough to transfer an absolute title and in another part thereof it appeared that it was the intention of the maker to limit the interest in the corpus of .the property in the
At the outs-et it should be said that a power must be executed in strict conformity with its terms, i, e., if the donor required it to be executed by will it must be done so in that way, and vice versa, if it is required to be executed by deed it can not be done by will, but if no .mode of execution is prescribed by the don-or the power may be exercised in any manner which would legally convey the property, which is the -subject matter of the power, but in either event there must be manifested in legal form an intention on the part of the donee to execute it. 31 -Cyc. 1117-1118 and 1121, and 21 B. 'O. L. 792-793. At common law a power ordinarily would not be deemed as executed, unless in the instrument by which it was attempted some reference was made to the power o-r to the property, which was the subject matter of it, unless the executing paper would -otherwise be ineffectual or a mere nullity and have no operation except as an execution of the power (21B. C. L. 795, 31 Cyc. 1122-1123), and under that law it was generally held that a residuary devise or bequest in a will containing mo reference to the power, -or the subject matter thereof, would not be a sufficient execution of -the power, though some of -the courts so holding further held that the power w-ould be deemed executed in the absence of such references Where there appeared a plainly manifested intention to do -so. Cyc., supra, 1126-1127; and on page 1128 the writer of the
Even under the common law rule an intention to execute the p-o-wer need not appear by express terms or recitals in the executing instrument, provided -enough appears therein to -show that it was tlxe intention -of the donee to exercise the power by -executing that instrument. Thomas v. Wright, 23 Ky. L. R. 2183, and cases referred to therein. Other cases from this court adopting and applying the -common law rule-, supra, as well as its modifications- by the section -of the statutes referred to, are: Herbert v. Herbert, 85 Ky. 147; Payne v. Johnson, 95 Ky. 175; Hankins v. Columbia Trust Co., 142 Ky. 206; Henriott v. Good, 153 Ky. 418, and McCormick v. Security Trust Co., etc., 184 Ky. 25.
In the Herbert case, construing the section, supra. of our statute, the opinion said: “This provision -of the statute evidently means that when the power -of -appointment -is given to be exercised by a last will, that a devise of the testator’s (donee’s) whole estate to the person who, in the testator’s discretion, he has the right to designate, the person thus designated will take under the devise, and the same -shall be regarded as the execution of the power, although the power given may no-t be mentioned'or referred to.” In the Hankins case, supra, the opinion discussed at length the principles hereinbefore referred to and -cites many oases, from foreign jurisdictions supporting them, and concludes that 'the
But, whether at common law a residuary clause could be construed as a sufficient execution of a general testamentary power, we need not determine, since we are convinced that such a clause is a sufficient execution of such a power under section 4845, supra, of the statutes, unless, as therein expressed, “a contrary intention shall appear by the will” of the donee. And this brings ms lo the contentions of counsel for appellees (a), that the statute applies only to a general power and not to a limited or special one, which latter it i.s insisted is the only kind of power possessed by Mrs. Irvine, and (b), that an intention not to execute the power conferred upon her by her husband’s will, in so far as the two hundred (200) acres of land involved are concerned, appears from her will. We find ourselves unable to agree with either of these contentions. In volume 31 Cyc., page 1040' the distinguishing features between a general and a special or particular power are thus stated: “By a general power is understood a ’right to appoint to whomsoever the donee pleases. By a special or particular power is meant that the donee is restricted to objects or beneficiaries designated in the instrument creating the power.” The only fact, as we understand counsel, upon which it is claimed that the power possessed' by Mrs. Irvine was a .special one is that .the method provided by the donor for executing it was limited to a testamentary paper. But, according to the rule for deter
We must confess our inability to grasp the very earnest argument of learned counsel in support of this contention. On the contrary, as we construe the will of Mrs. Irvine, it was her expressed intention to exercise the power given her by her husband in the making of her will, and the expression “my property,” found in some parts of her will, does not militate against that conclusion for, as we have heretofore seen, she regarded her husband’s will as dealing with a large portion of property rightfully belonging to her and his will as making “a return of all to me.” At the very -beginning of her will she not only refers to the power, but says: “And I shall proceed to do so in this writing.” As we have seen, her •will, including the residuary clause, was sufficient to pass title to -all the property if it had all belonged to her in her own right. Her husband had given to -appellant a valuable piece of property in the -city -of Richmond, which was their home, and contained about -sixteen (16) acres. 'She -changed her husband’s disposition of -that
But, at this point, it is strenuously insisted by learned counsel for appellees that Mrs. Irvine under the will of her husband could not exercise the power of appointment therein conferred upon her without first revoking the appointment made by her husband, the donor of the power, and that she did not in her will revoke such prior appointment of the farm in controversy and that, even if the residuary clause in her will was a sufficient execution of the power of appointment of that farm to appellant, as her residuary legatee, it is ineffectual for the purpose because of her failure to revoke her husband’s prior devise of it to the appellees, which it is claimed she did not do in her will, and the English cases of In re Brave-Welch v. Colt, Law Reports Chancery 2, 671; Pomfert v. Perring, 5 De. G. M. & G., 775; Palmer v. Newell, 20 Beavins, 32; Phillips v. Caley, 21 English Ruling Cases, 565, and Garmon v. Glass, 197 Pa. 101, are relied on in support of that contenltion. The English cases seem to be in point, and to hold that under section 27 of the English Wills Act, which .is the same as section
In the case of Brave-Welch v. Colt, relied on, and which supports appellees ’ contention, the opinion says: “And, moreover, it is clear law as well as common sense that the thing may be done, without .any express revocation of the old uses, by the use of words which can take effect only if a revocation of the old uses is implied.” In the other cited English cases there was not involved any question of implied revocation and the opinions make no reference to it. In Sudgen on Bowers, vol. 1, the learned author says, on star pages 357-358, that: “On the same principle it is, that where a man has a power of revocation, and does an act which can operate only as an exercise of it, and all incidental circumstances prescribed by the proviso are observed, the act shall accordingly be deemed an execution of the power, although no reference whatever is made to it, and there is not any express signification of the intent to determine and disannul the estates which will be defeated by the execution of it.” In 31 Cyc. 1121, the text says: “The intention to execute a power must always appear in its execution, either‘by express terms or recitals, or by necessary implication,” which we construe to apply to a power of revocation as well as to a power of appointment. The Pennsylvania case relied on is no authority for the proposition contended for, since the right of the donee therein to revoke the prior appointment and to make a new one was expressly conditioned, in the instrument creating the power, upon the beneficiaries under the first appointment not being obedient to her during her natural life. The donee attempted to exercise the power but she made no reference to the imposed condition upon her power, nor did she state that such disobedience existed, and it was held, that without it the power to revoke and reappoint did not exist, which
We have heretofore inserted the expressions in the will of Mrs. Irvine which conclusively indicate, as we think, her intention to dispose of all the property covered ¡by her husband’s will. She not only referred to the power she possessed, but she referred to the property covered by it as having been returned to her and that (referring" to the execution of the power) “I shall proceed to do so in this writing.” There is no testimony appearing in the record that she had executed any prior will, yet at the very commencement of her will ¡she uses the expression “revoking all other wills,” and sorrowfully refers to the fact that “the long honored name of Irvine has passed.” In the clause in her will designated in the record as the “null and void clause,” she refers to that part of her husband’s will which bequeathed stocks, bonds, real estate and legacies “to the 'Children of Addison and Sarah of Huntsville, Alabama,” and then recites that she was made a feme sole by her father’s will and that her husband’s last will “makes a return of all to me,” and then says: “It is.my will that several persons mentioned in the above clause. ,of this writing, (children of Addison and Sarah McDowell White) shall receive go part of my estate, or that of the late William M. Irvine, unless it be devised to them in this instrument. This I reserve as my own right and shall act accordingly.” “The above clause,” to which she referred therein, was that clause of her husband’s will disposing of the farm in contest, and ¡appellee, David I. White, is one of the 'Children of Addison and Sarah, and. while •she did not refer to the grandchildren of Addison and Sarah, it is quite apparent that her intention was to revoke that clause of her husband’s will and to dispose of the property mentioned in it by her own will. 'Considering’ all of the facts to which we have referred, there can be no doubt of a clearly implied, if not an expressed, intention on the part of Sirs..Irvine to revoke the appointment made by her husband, except the one to his half brother, which indeed had been settled upon him long-before she wrote her will.
We, therefore, conclude that, if we should accept the doctrine of the English cases, it yet remains true that the will of Mrs. Irvine conformed to it and devised the farm in contest through the operation of the residuary clause in her will to the appellant, Greenway.
Wherefore, the judgment is reversed with directions to set it aside and to enter one in conformity with the principles of this opinion. Whole court sitting. Judge Clay dissenting.