131 A. 364 | Pa. | 1925
William H. Bennett died testate in 1897 seised of a farm underlaid with the Pittsburgh vein of coal, containing 94 acres. He left to survive him a widow and seven children one of whom was named Martha. The farm was devised to his widow for life and it was directed that at her death it "shall be sold by my executors . . . . . . and the proceeds" disposed of as follows: $100 to a grandson, "and the residue" divided into seven equal shares, — one share to each of six named children, and the seventh, Martha's share, was to "be invested in real estate by my executors herein named which real estate she shall have use for her benefit and that of her family during her natural life, and at her death it shall belong to her children share and share alike." Martha had a child living at the time of her father's death, and two others have since been born to her. The testator's *533 two sons, John and Demas, who also were devisees, were appointed executors.
In 1899 the widow and seven children, including of course the two mentioned as executors, joined in a general warranty deed conveying the vein of coal under the farm, together with certain mining rights, to Hiram Rankin and wife. Since this conveyance, the coal has passed through many hands and today is worth from $300 to $400 an acre.
The widow died in 1917, and the executors then twice advertised the farm for sale. The first advertisement read: "Excepting and reserving" the vein of coal sold to Rankin. The second one, and the deed, contained this clause, "subject to the rights of Hiram Rankin and wife . . . . . . to the vein of coal as sold and conveyed by . . . . . . Bennett. . . . . ." Appellee purchased the farm for $52.60 per acre and claimed that the Pittsburgh vein of coal above mentioned, as well as the surface, was included. He instituted ejectment for the coal, appellant having been in possession of it since 1899. The court below directed a verdict in plaintiff's favor which was permitted to stand, and judgment was entered thereon.
Clearly the merits of the case are with the appellant, who for 23 years had been in the possession of property for which a valuable consideration was paid. During all this time there has been no protest or complaint from any one.
Many interesting questions are presented; but the case turns on these two: (1) Was the joinder of the two executors as heirs with the widow and other heirs in the conveyance of the property an execution of the power of sale? (2) If not, was the power well executed in the second sale as it related to the Pittsburgh seam of coal?
A power is an authority given to dispose of real or personal property of which the donor has the right of disposition. It is not an estate in the property, and its scope and extent is governed by the instrument creating it. A direction by will, to sell real estate, is a power *534 conferred by a testator on a donee, in the present case, the executors.
Whether the power has been executed, is a matter of the donee's intention; that is the true test. It may appear by express terms, recitals or necessary implication. It was early held that the intention to execute the power must be so clearly manifested in the act of execution that it is impossible to impute any other (Andrews v. Emmot, 2 Bro. C. C. 297, 29 Repr. 162; Doe D. Nowell v. Roake, 2 Bing. 497, 130 Repr. 398, reversed, 5 Barb. C. 721, 108 Repr. 268, which was affirmed 6 Bing. 475, 130 Repr. 1364), and this intention should appear in the instrument: Bingham's App.,
Where a power of sale is executed by deed without reference to the power, it is effective as such if it would otherwise be a nullity; for example, in Lancaster v. Dolan, 1 Rawle 231, 248, the power was to appoint and the donee gave a mortgage without reference to the power. Of similar import are Coryell v. Dunton,
In Jones v. Wood,
It was stated in McCreary v. Bomberger,
Such being the law governing the ascertainment of the intent of the parties as to the execution of powers, it remains to apply it to the case at hand. In this case we have an estate that is concededly converted (Davidson v. Bright,
The executors, when later exercising the authority to sell the farm, recognized the first sale as an execution of the power. In the proceedings and the deeds, by the exception, reservation and "subject" clauses noted above, they did all that was possible to confirm their prior acts, not as individuals but as executors under the will. Such evidence of intention, though in some instances crudely expressed from the standpoint of legal theory, should not now be disturbed. Certainly, after 23 years, when the property has grown immensely in value, in the hands of others, with no objection from any *537 source up to this time, we should hesitate to condemn the act.
That the sale was not to be made until the widow's death is immaterial. As stated by Mr. Justice MITCHELL in Hamlin v. Thomas,
If the execution of the first deed was not referable to the power contained in the will, then, because of the advertisements and the second deed to appellee, the power as it related to the Pittsburgh seam of coal was not only not well executed but not executed at all. If powers must be strictly pursued and the instrument must contain inherent proof of its exercise, so much so that it is impossible to impute any other (Wetherill v. Wetherill,
Nothing above said affects, in any way, the estate of the children of Martha. Appellant has repeatedly stated, in the course of this litigation, that the rights of these children were not acquired through the conveyance to Hiram Rankin and his wife. Probably, for that reason, the children were not heard below or here, and certainly, *538 because thereof, their rights are not determined by us. That concession has, therefore, become the law of the case, and the estate of these children remains unconverted, exactly as it existed immediately after the death of William H. Bennett.
Judgment is reversed without prejudice to the rights of Martha's children, — costs to be paid by the appellee.