Matthews v. McDade, 72 Ala. 377

72 Ala. 377 | Ala. | 1882

SOMEKWILLE, J.

A testator may, in his will, so refer to another instrument or paper executed by him as to constructively incorporate it therein, and the two may thus be constituted together but one instrument. This reference must be so clear and distinct as that there can be no reasonable room for mistake of intention.—1 Jarman on Wills (5th Amer. Ed. 1880), 37-39; Chambers v. McDaniel, 6 Ired. L. 226; Peacock v. Monk, 1 Vesey, 127.

The deed of trust, bearing date May 25, 1850, was executed by the testator, James McDade, on the same day witb bis last will. The two instruments bear the same date, and are attested by the same subscribing witnesses. They both have reference to the same general subject-matter — the distribution of the testator’s property — and the one expressly refers to the other. The trustee appointed to execute the one instrument, which in form is a deed of trust, is also one of the two executors appointed to execute the will. Whether these facts rendered the two instruments legally but one, and constituted their elecution but a single testamentary act, in such manner as to authorize the probate of the will and the deed together as one fa/per, it is unnecessary to decide; for, even the same instrument may be sometimes construed to operate in part as a will, and in part as a deed, if the intention to this end be clear.—Kinnebrew v. Kinnebrew, 35 Ala. 628. It is enough for our purpose, that the Probate Court assumed jurisdiction, and, after notice to all interested parties, probated the two instruments unitedly, as the last will and testament of James McDade. Its jurisdiction in the matter was full, exclusive, and final. The power to probate a will, necessarily involves the power to decide whether the paper presented for probate is in fact a will, or not a will. Hence, it has been held, that the probate of aforged paper as a will is binding and valid until revoked, and is conclusive on collateral assailment.—Allen v. Dundas, 3 T. R. 129; 1 Jarman on Wills (5th Amer. Ed.), 48-53. The testamentary character of the paper is always, in such cases, a question of primary consideration, without the determination of which there can be no probate of it. This question was settled by the action of the Probate Court, which is final and conclusive upon all parties in interest, unless its judgment is assailed otherwise than in a mere collateral proceeding. Its validity could have have been contested afterwards only by direct appeal, or by a bill in chancery filed, under the provisions of the statute, at any time within five years after the date of probate.—Code of 1876, § 2336; Goodman v. Winter, 64 Ala. 410; Hall’s Heirs v. Hall, 47 Ala. 296; Deslonde v. Darrington, 29 Ala. 92; Hardy v. Hardry’s Heirs, 26 Ala 524; 1 Jarman on Wills (5th Amer. Ed. 1880), 48-53.

These views are pertinent, chiefly, in their bearing upon the execution of a power vested by the deed of trust in Alexander McDade, who was both trustee under this instrument, and the sole acting executor under the will. The question is, whether this power can be construed to have been properly executed, so as to affect the rights of the compdainants. McDade, as trustee, had conferred on him by the testator the power to sell the land in controversy, within a reasonable time after the death of the testator, for the purpose of making a division among those entitled. He did make a sale and conveyance of it, to one William McDade, through privity with whom the appellant claims title. We are to determine whether this sale and conveyance are referable to the power, and were intended as an execution of it. If so, they operate to cut off the remainder created in the appellees, and possession under the deed for over twenty years, with claim of adverse possession, has matured into a good title.

We take the rule as settled, that while, in the execution of a power, the donee or trustee of the power must not leave it uncertain whether or not the act done is in execution of the power, a di/rect reference to the power is never necessary in order to make the act referable to it. — 2 Story’s Eq. Jur. § 1062 a. In other words, “it is not necessary that the intention to execute a power shall appear by express terms, or recitals in the instrument. It is sufficient that it shall appear by words, acts, or deeds, demonstrating the intention.”—Ib. § 1062 a, note 5; McRaes Adm'r v. McDonald, 57 Ala. 423. It must be apparent that the transaction in question is not fairly or reasonably susceptible of any other interpretation, than as indicating an intention to execute the power; and this intention is to be collected from all the circumstances.—Sir Edward Clere's case, 6 Co. R. 17; Pomeroy v. Partington, 3 Term R. 665.

The deed made by Alexander McDade, to William McDade, is dated December 27, 1855, and contains, it is true, no reference to the power. It is insisted, however, that this conveyance may be as well refen’ed to the power conferred by the Probate Court upon the executor, authorizing him to sell, which he seems to have previously obtained on application to that tribunal. It was manifestly, we thinh, intended as an execution of the one power, or of the other. If referred to the will, its execution will be operative and valid. If referred to the order of the Probate Court, it will be inoperative and invalid ; for it needs no argument to show, that this court had no jurisdiction, under the circumstances, to make this order of sale, which was therefore a -nullity.—McRae's Adm'r v. McDonald, 57 Ala. 423. In such cases, the inclination of the court is, always, to refer the act to the valid power, so as to afford some field for its operation, upon the maxim, Ut res magis valeat, quampereat, if this Can be done consistently with other prevailing rules of construction.—Clere's case, 6 Co. E. supra, 2 Story’s Eq. Jur. (Redf. Ed.) § 1062 a, note 5, p. 267.

The deed under consideration purports to be made by Alexander McDade, in his capacity as executor of James McDade. It conveys a fee-simple interest in the lands, and contains a covenant as executor, not only of his right to sell and convey, with a warranty of title, but that he is “lawfully seized i/nfee','> of the premises conveyed, as executor of the last will and testament of the deceased. It was, furthermore, executed more than five years after obtaining the authority of the Probate Court to sell. This fact is important, in consideration of the further circumstance, that no report of sale was made to the Probate Court, and no authority to -convey was obtained, which could only be granted on report of the payment of the purchase-money, and confirmation of the sale by formal order of the court. — Code of 1876, §§ 2467-68. The utter absence of conformity to these statutory requirements, and the delay of five years, evince, in our opinion, a clear intention not to refer the deed to the power conferred by the Probate Court. It is persuasive of the conclusion that, after so great a lapse of time, the executor opened his eyes to the fact of the invalidity of this order, and refused, on this account, to attempt its exeeu-. tion.

The language of the deed evinces, on the contrary, a strong intention to refer it to the power conferred by the will — or, what is the same thing, to the power conferred by the deed of trust, which was probated, and considered as part and parcel of the will. An executor is often a trustee, — the powers of a trustee being attached, not to. the executorial office, but to the executor in his personal or individual capacity.—Perkins v. Lewis, 41 Ala. 649. Hence, the covenant of actual seizin in the grantor, and the conveyance by him of a fee-simple interest, as executor, in the lands in question, can be referred to nothing else than the will. As we have said, it is clearly referable to one of the two powers, and must have been intended as an-execution of the one or the other; and as it is obviously not intended to be referred to the void power, we are authorized to conclude that the intention, gathered from all the circumstances, was to refer it very clearly to the valid powers conferred by the will. Id, certum est, quod cert/wm reddipotest.

There is another view of this case in harmony with the con-' elusion which we have reached. More than twenty years have elapsed since the execution of this power, and the possession of the vendee and those claiming under him has been open, notorious, adverse, and uninterrupted since then. And while the statute of limitations can not be invoked to bar the claim of the remainder-men, if the power in question has never been so executed as to legally divest their title, yet a presumption is raised by this lapse of time, upon another principle, favorable to the repose of appellant’s title. Twenty years is a period of time beyond which the courts are indisposed to permit past human transactions to be disturbed by judicial investigation. McArthur v. Carrie's Adm'r, 32 Ala. 75, 88; Garrett v. Garrett, 69 Ala. 429; Baker v. Prewitt, 64 Ala. 551. In Sims v. Aughtery (4 Strob. Eq. 103), the following language was used by the Supreme Court of South Carolina: “Twenty years continued possession will raise the 'presumption -of a grant from the State, of deeds, wills, administrations, sales, partitions, decrees, and (the chancellor has said) of almost anything that may be necessary to the quieting of title, which no one has disturbed during all that period.”—McArthur v. Carrie's Adm'r, supra, pp. 91-93. And this court has held, that this presumption will not be defeated by infancy, coverture, or other personal disability.—McCartney v. Bone, 40 Ala. 536; Garrett v. Garrett, supra. Nor will its operation be suspended by causes which have been legally adjudged to suspend the running of statutes of limitation.—Harrison v. Heflin, 54 Ala. 552. It is in accord with the spirit of this principle that the statute intervenes to prevent any legal disability from being permitted to so operate as, under any circumstances, to authorize the probate of a will to be disturbed after the lapse of twenty years (Code of 1876, § 2338); or, in fact, to authorize any disability to extend the period of limitation beyond twenty years from the time the cause of action accrued. — Code, § 3236. It would be but a just application, we think, of this rule of presumption, to permit it to be invoked, in order to impart probability to the regular and proper execution. of a power by a trustee, or an executor. It should, at least, incline the mind of the court to draw inferences from the facts favorable to the repose of titles, which may be affected by the execution of such a power. This we are disposed to do, and we need extend the principle no farther at present.

These views must operate to reverse the decree of the chancellor, and necessarily result in a dismissal of complainants’ bill; ■ and a judgment to this effect is accordingly ordered to be rendered in this court.