17 Mo. 98 | Mo. | 1852
delivered the opinion of the court.
This was an action of ejectment, instituted in August, 1848,, by Norcum, the plaintiff, against the defendants, for a lot of ground on Park Avenue, in the city of St. Louis. Both parties to the suit derived title to the premises in controversy, through James Mackay, whose claim to them was not controverted. The title of the plaintiff rested on a quit claim deed, whose consideration was ten dollars, executed by Charles S. Rannells, on the 6th June, 1848, who purchased from the heirs of James Mackay ; and on a deed from Isabella Mackay, the widow of James Mackay, executed after the beginning of the suit, conveying her interest in the premises, which was a life estate, subject to be defeated upon her second marriage. The consideration of the deeds from the heirs of Mackay to Ran-nells bore little or no proportion to the value of the lands purporting to be conveyed by them. These deeds all bore date in the years 1846-7. The deed of one of the heirs was executed in a manner so as not to be effectual for the purpose of conveying the interest intended. The defendants derived title to the lot in dispute through Arend Rutgers, who claimed under a deed executed by Isabella Mackay, the widow of James Mackay. This deed was executed on the 5th day of May, 1825, in pursuance (as it purports on its face) to the will of James.
John Long, Anthony Soulard and Isabella Mackay were appointed executors and executrix of the will, with a power to the survivors to choose a successor to any of them in the event of death. Long renounced and Mrs. Mackay and Soulard qualified as executrix and executor. This will was dated 7th November, 1821, and letters testamentary were granted thereon the 29th April, 1822. Mackay died during the latter part of the month of March, 1822, leaving eight children, all under age. Anthony Soulard died on the 10th March, 1825. The following is a copy of the deed from Isabella Mackay to Arend Rutgers :
“ Whereas, James Mackay, in his life time, by his last will and testament, bearing date the seventh day of November, in*108 the year of our Lord one thousand eight hundred and twenty-one, and recorded in the office of the Probate Court, book A., pages sixty-eight and following, authorized Isabella Mac-kay, his wife, and executrix, to sell, dispose of, and take such of the property as will be necessary for her support and that of her children, as will more fully and at large appear, reference being had to the seventh section of the said last will and testament; and, whereas, the said Isabella Mackay, executrix as aforesaid, finds it now indispensable, for her maintenance and that of her children, to avail herself of the provisions of the said seventh section : Now this indenture witness - eth, that the said Isabella Mackay, executrix, as aforesaid, by virtue of the power vested in her by said last will and testament, and for and in consideration of the sum of three hundred and twenty dollars, to her in hand at and before the sealing and delivery hereof, well and truly paid by Arend Rutgers, of the county of St. Louis, the receipt whereof is hereby acknowledged, and therefrom and of every part and parcel thereof, the said Arend stands acquitted, exonerated and discharged, she, the said Isabella Mackay, executrix, as aforesaid, hath granted, bargained and sold, and doth hereby grant, bargain and sell unto said Arend, all that certain tract, piece or parcel of land, situate, lying and being south of the city of St. Louis, and containing thirty- three arpens, French measure, and bounded as follows, to-wit: southwardly, by lands of Anthony Soulard, w.estwardly, by lands of James Mackay’s estate, northwardly, by lands of John Mullanphy and Auguste Chouteau, and eastwardly, by lands of John Mullanphy and the road leading from St. Louis to Carondelet, it being part of a larger quantity granted to said James Mackay, as will more fully and at large appear, reference being had to the title papers, concession and survey of two hundred and eighty-two arpens, recorded in the office of the recorder of land titles for the (present) state of Missouri, book B., page (434) four hundred and thirty-four. To have and to hold the said granted and bargained premises, together with all and singular the*109 privileges and appurtenances to tbe same belonging or in any wise appertaining, unto bim, tbe said Arend Rutgers, bis beirs and assigns, and to bis and their own proper use, benefit and behoof forever. In witness whoreof, she has hereunto set her band and seal, as executrix, as aforesaid, tbe fifth day of May, one thousand eight hundred and twenty-five, Isabella L. Mac-kay, Administratrix. (seal.)
“ Signed, sealed and delivered in presence of Peter Ferguson.”
Zeno Mackay, tbe eldest of tbe children of James Mackay, testified, that in 1824, an oflicer, by virtue of an execution, seized a favorite female slave, “ pretty much all tbe rest of tbe slaves having been previously sold.” ' His mother, being much distressed, sent to consult Antoine Soulard, to know what was to be done. He advised, that an application should be made to Arend Rutgers for money. This was accordingly done. Rutgers declined lending any money, but said if Soulard and Mrs. Mackay would sell bim some few acres of useless land in tbe big gully, be would endeavor to raise it. He returned to Rutgers tbe next day, and informed bim that Soiilard would not sell, but if be would take a deed executed by bis mother alone, be should have tbe land be wanted. Rutgers agreed to this, and tbe next day gave bim two hundred and fifty dollars, when tbe witness, bis mother and Rutgers went to Leduc’s office, where a paper of some kind was drawn up, which was signed by Mrs. Mackay and delivered to Rutgers. Tbe executions, by virtue of which tbe slave was seized, were satisfied with the money received from Rutgers. Soulard objected to tbe sale to Rutgers, because be intended to lay out a grave yard on tbe land be wished to purchase, which was adjacent to Soulard’s estate, and be did not want a grave yard under bis nose. James Mackay’s estate was very much embarrassed at tbe time of bis death. His mansion bouse below tbe city, being tbe residence of bis family, was sold under execution and conveyed in October, 1824. After tbe family removed from tbe home place, tbe last chair was sold from them. There was a great
The court refused the following instructions asked by the plaintiff:
“ The court instructs the jury that, if they believe the several deeds given in evidence by plaintiff were duly executed, and that Zeno Mackay, Eliza Coleman, Catharine Guión, Julia Bowles, George Antoine Mackay, James B. Mackay, Emilie A. Coleman, Louisa Barker, were the children and heirs at law of James Mackay, deceased, and devisees under his will, they will find a verdict for the plaintiff, for seven-eighths of the premises in question.
“ The deed executed by Isabella L. Mackay to Arend Rutgers, given in evidence by the plaintiff, is void, not appearing or purporting to have been executed by the advice, concurrence or consent of the persons named as executors in said will, with the said Isabella L. Mackay, such advice or consent not appearing on the deed or by any written evidence thereof. To make the deed effectual, as a conveyance under the power in the will, it is necessary that the executors named in the will, viz., John Long and Antoine Soulard, should have advised or consented to the sale to said Rutgers and the execution of the deed, at or before its execution.
“ Where the will contains a provision for substituting executors for those who die or refuse to act, no power can be exercised by those acting or surviving, without supplying the places of those dead or refusing to act.
“ The jury are instructed that the deed of Isabella L. Mac-*111 kay to Arend Rutgers is -void, unless the defendant has proved that Antoine Soulard, who took out letters testamentary, advised or consented to the execution of said deed, at or before its execution.
“ If the jury find that Antoine Soulard was dead before the execution of the deed to Rutgers by Isabella Mackay, and did not advise or consent to the same, at his death, the power Ceased and could not, therefore, be executed.
“ If the jury find from the evidence, that the sale was actually made to Arend Rutgers, in the life time of Antoine Sou-lard, and without his concurrence and against his consent, and the making of the deed postponed until after the death of said Antoine Soulard, this is an evasion of the requisites provided by the testator to the due execution of the power of sale, and they will find the deed to Arend Rutgers void.
“The jury are instructed that the will of James Mackay, not being probated according to law, and no letters testamentary appearing in fact to have been issued, there was no authority to sell, and the deed to Arehd Rutgers is void.
“ When the will contains a provision for substituting executors for those who die or refuse to act, no power can be exercised by those acting or surviving,, without supplying the places of those dead or refusing to act.
“If the jury find from the evidence, that there were left eight children of James Mackay, deceased, who are his heirs at law, and that they duly executed and acknowledged deeds to Charles S. Rannells, conveying the land in controversy, and that said Rannells duly executed and acknowledged a deed to the plaintiff for said land, and that said deeds were made and acknowledged before the commencement of this suit, they will find in favor of the plaintiff, as follows, to-wit: “ One-eighth part of said land sued for, for each deed of said children of Mackay, so duly executed and acknowledged, excepting the share of Coleman and wife, conveyed by their attorneys, R. J. & J. R. Barrett, as not duly executed, and excepting one-eighth*112 part o£ tbe whole premises in common and undivided, outstanding in E. C. Hutchinson.”
“If the jury find from the evidence, that there were left eight children and a wife of James Maekay, who are his devi-sees, and that they duly executed and acknowledged deeds to Charles S. Rannells, conveying the land in controversy, and that said Rannells duly executed and acknowledged a deed to the plaintiff, conveying said land, and that said deeds were made and acknowledged before the commencement of this suit, they will find in favor of the plaintiff, as follows : “ One-ninth part of said land sued for, for each deed of said children and wife of Maekay, excepting the share of Coleman and wife, conveyed by their attorneys, R. J. & J. R. Barrett, as not duly executed, and excepting one-eighth part of the whole premises in common and undivided, outstanding in E. C. Hutchinson.”
“ If the jury believe from the evidence, that the sale of the land to Arend Rutgers by Isabella Maekay was made for any other purpose than the “ good and decent maintenance and education” of the children of James Maekay, the testator, then they are instructed that her deed was void and did not operate to vest the title in said Rutgers.
“ If the jury believe from the testimony, that no such reasons as were intended by the testator, as expressed in his will, to operate in inducing his wife to sell, so far as she may be under the will empowered to dispose of any of his real estate, did operate in making the sale to Arend Rutgers, then the deed made by her to said Rutgers was void and inoperative to vest title in him.
“ If the jury find from the testimony, that the term “mansion house and plantation belonging thereto, situated near St. Louis bridge,” used by James Maekay, in the sixth section of his will, referred to and was intended to include the land sued for here and claimed to be in possession of defendants, then the deed from Isabella Maekay, executrix, was made with*113 out authority under the will, and was void as a conveyance of the title of said land to Arend Rutgers."
And gave the following instructions :
1. That letters testamentary on the estate of James Mae-kay were legally obtained by Isabella L. Maekay and Antoine Soulard.
2. That, under the seventh section of the will of James Mae-kay, the widow, Isabella L. Maekay, had the power, “ by and with the advice” of her co-executors, to sell, for the purposes mentioned in said section, any portion of the real estate not excepted from sale by the sixth section of the will, and that the “ mansion house and plantation belonging thereto, near St. Louis bridge,” were excepted' from sale by said sixth section.
3. That the leading objects of the testator were, to provide for the support and maintenance of his widow and children, and that the will should be liberally construed, so as to accomplish those objects.
4. That a power, executed for a meritorious consideration, as to make provision for a wife and for children, or for the benefit of creditors and purchasers, need not be strictly pursued in its execution.
5. That, as the recital in the deed from Isabella L. Maekay to Arend Rutgers refers to the seventh section of James Maekay’s will, for the power under under which she made said deed, the deed will be void, unless made in pursuance of said seventh section.
6. That the power given to Isabella L. Maekay, in said seventh section, survived to her after the death of Soulard, if he were the only executor named in the will who qualified and acted as sueh, and that, after Long renounced and Soulard died, if no other person qualified as executor, and Isabella L. Mae-kay was the sole executor or executrix, acting and qualified, at the time of the deed to Rutgers, she had full power to make said deed, for the purposes mentioned.
7. That, in ascertaining whether the “ mansion house and
8. That, if the jury find that the land claimed in this suit was included in the plantation belonging to the mansion house of James Mackay, near St. Louis bridge, according to the true intent of said Mackay’s will, and that his widow is still living and is unmarried, the plaintiff cannot recover in this suit.
9. That if Isabella L. Mackay sold the land mentioned in her deed to Rutgers, for any other purposes than those mentioned in the seventh section of James Mackay’s will, then the deed to Rutgers is void, and that a sale of said land, if not part of the plantation belonging to the mansion house, for the purpose of saving a slave for the use of the family, if the use of said slave was necessary for the purposes mentioned in the seventh section of said will, is within the power given to said Isabella L. Mackay, and that the deed would not, therefore, be void.”
Mrs. Mackay had a life estate in the mansion house and •plantation thereto belonging. Her deed to Rutgers did not purport to convey any lands she held in her own right. Whether the land conveyed to Rutgers was a portion of the plantation belonging to the mansion house, was a question of fact, whose determination was within the province of the jury.
It may be conceded that the power of sale entrusted to the executors was only to be exercised in the event of the second marriage of the wife ; and as that event never occurred, the power could never be lawfully exerted by them, as it is not to be presumed that two different agents should be simultaneously empowered to perform the same act. So it may be conceded, that a power of sale was not implied in the direction to pay the pecuniary legacies given by the will.
Judging from what we know of St. Louis at this time, we might be disposed to regard Mrs. Mackay’s conduct as unwise and imprudent. A quarter of a century ago, few foresaw that St. Louis would be what she is at this day. We look back at times long gone by, and wonder that men did not foresee her future growth. A future generation may make tbe same observation of us. Tbe question is not, what tbe land is now worth, but what it was worth at that day, and when tbe matter is viewed in this light, there is nothing in tbe record which
Judgment affirmed,