Priest v. McFarland

262 Mo. 229 | Mo. | 1914

Lead Opinion

OPINION.

I.

BOND, J.

Will: Life Estate: Power of Disposition, (After stating the facts as above).— There is no proposition better settled than that where a life estate is expressly or impliedly created by will or deed, coupled with a superadded power of disposition in the life tenant and a remainder in fee, if that power is not exercised, the limitation over take full effect unless the power to dispose given to the life tenant has been exercised according to the strict terms in which it was bestowed. [Grace v. Perry, 197 Mo. l. c. 562, and cases cited; Armour v. Frey, 226 Mo. l. c. 669; Burnet v. Burnet, 244 Mo. l. c. 505; Tallent v. Fitzpatrick, 253 Mo. l. c. 15.]

In the case in hand there was no attempt on the part of the tenant of the life estate to dispose of the 720 acres devised in the will of her husband except as to the portion thereof consisting of 220 acres constituting the home place. The residue, consisting of 500 acres, upon the death of the life tenant vested in fee in the nine children of the testator or their descendants as remaindermen under the will. Hence, the solitary question on this appeal is whether the deed of the life tenant to defendants cut off the rights of these remaindermen to the property described?

The clause of the will under which the deed made to defendants recites it was made, contains apt terms investing Harriet McFarland, the wife of the testator, with an estate for life in all of his land. The power given to her to alienate is couched in the following language: “With full power to sell and dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon the sale or other disposition of any or all of my said property.” The will then recites the full confidence of the husband in the wife and in the next paragraph expresses his desire in the final disposition of his estate that the children shall share alike except that two of them shall receive a bonus of $500', not to be accounted for. But his wishes in this or any other respect, were necessarily subject to the action of his wife under the terms of the will investing her with power to dispose of the property in which she was given a life estate. Those terms clearly and unmistakably show that she had “full power” of disposition and that she was also given “full power to give a good and perfect title upon sale or other disposition of any or all of my said property,” and that these powers were exerciseable “absolutely and at her own discretion.” It is perfectly evident in considering these terms that during her lifetime there was no restriction placed upon the manner, mode or object for which the wife might dispose of the property. She was not restricted to a sale for a moneyed price, for the deed gave her “full power” to make a “perfect title by any other disposition,” at her discretion, of the property devised. Neither was she restricted to a sale of the entire estate including the remainder given her. There is nothing in the language of the will which permits such a view, nor would it be logical to say that she might dispose of the entire estate, but in so doing could not reserve to herself a life estate. For the power to convey the whole title necessarily carries the power to dispose of any part or parcel of such title, upon the axiom that the whole is the sum of all its parts, and hence, the power to transfer the whole necessarily includes the power to transfer any and all of its component parts. Undoubtedly the established law in this State is that the donee of a power, such as the one in review, can only exercise it in strict and exact compliance with the terms in which it is given. But the language of the will in this case expressly gave the life tenant the power to make a sale or “other disposition” of the property during her life. And while it may be conceded that these terms would not invest her' with a power to have disposed of the property by will, yet their necessary significance did give her power to sell or otherwise dispose of the lands by a deed in praesenti. No.w this is what she did under the testimony in this case and in strict execution of the power given to her by the testator. Whether she got the full price of the land, as to which there was conflicting evidence, is immaterial to the efficacy of the conveyance by her within the scope of the power granted by the will. For as is shown she was authorized in selling or disposing to act “absolutely and at her own discretion,” which implies ex vi termini that the power to dispose was not dependent on the amount of the consideration. In other words, the testator made her his alter ego as to the method or mode of disposition of the property devised by any form of alienation other than a will.

Our conclusion is that the deed to the defendants was a valid execution of the superadded power of disposal given to the life tenant by the terms of the will.

II. "We are wholly unable to concur with the learned counsel for appellant that the deed to the defendants was not a present conveyance, but was a mere attempt to convey the title by an instrument in the nature of the last will and testament. In Terry v. Glover, 235 Mo. l. c. 552, the rule is correctly stated that an instrument to be valid as a deed must be one of present conveyance. In that case the deed contained no words of present conveyance. Neither was it ever delivered, but it did contain this express recital, ‘ ‘ This deed not to go into effect until after the death of the said George Glover.” Beyond doubt such an instrument shows on its face that it was a mere attempt to make the will without the statutory requirements and therefore void. Exactly the same recital was contained in the deed under review in Givens v. Ott, 222 Mo. l. c. 411, and also in the case of Murphy v. Gabbert, 166 Mo. l. c. 601.

In the case of Miller v. Holt, 68 Mo. 584, the instrument was in form a will, it was never delivered and the contention of the grantees that it was in legal effect a deed in praesenti, was necessarily overruled. None of these cases (cited by appellant) sustain the claim that the deed now under review was void as a testamentary disposition of the property and therefore not within the limits of the power delegated under the will, nor in compliance with the statutory power to make wills. This instrument expressly reserves a life estate in the grantor and conveys at the same time, by words of present import, a vested remainder in the property to the grantees. It does not provide, as in the cases cited, that the conveyance made shall not be operative as its terms express. It merely recites that “at and after my death then, etc., this deed shall become absolute and fully vest the title in fee in said second parties” (italics ours), which is what would necessarily follow as a matter of law from the fact that the deed reserved a present life estate in the grantor. With a life estate expressly retained the “title in fee” could not fully vest in the grantees until the expiration of the precedent estate. Being vested remaindermen, the grantees had a “present fixed right of future enjoyment” (4 Kent’s Comm. [14 Ed.], 203), and when the life estate lapsed became the owners in fee. It is evident that the effect of this language, in the deed was simply to recite a legal consequence of the status of vested remainder-men. The delivery of this deed and its record when made and the provision therein for a life estate in the grantor also tends to show her intent that the conveyance should be, as it purported to be, a present one. [Sneathen v. Sneathen, 104 Mo. l. c. 209; O’Day v. Meadows, 194 Mo. l. c. 617-8-9.] A will is ambulatory and revocable by the maker; a deed, although the enjoyment of the estate may be postponed, when once fully executed, can only be revoked by a stipulation reserved therein.

The deed in this case contained terms of present conveyance of the remainder. It was duly signed, acknowledged, delivered and recorded, and contained no other recital as to the vesting of the.fee than one in accordance with the principles of law applicable to the nature of the instrument; It was therefore an irrevocable contract of present conveyance, binding on the parties according’ to its terms, and it was neither in form nor essence a testamentary disposition, as defined by the law of the State.

It follows that the judgment herein is affirmed.

PER CURIAM.-

The foregoing opinion of Bond, J., in Division No. One, is adopted as the opinion of the Court in Banc.

'Woodson, Walker and Bond, JJ., concur; Brown, J., concurs in the result in a separate opinion. Lamm, G. J., Graves and Baris, JJ., dissent.

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Concurrence Opinion

CONCURRING OPINION.

BROWN, J.

I concur in the opinion of my brother Bond in so far as it holds that, under the power conferred by the will of Walter McFarland, Sr., the widow was fully authorized to sell less than a fee simple title in said testator’s lands, and that her deed to Abraham McFarland and Walter McFarland, Jr., passed a vested remainder to those parties and was in form legal and valid. [Dewein v. Hooss, 237 Mo. 23.]

I am, however, convinced that the widow was not authorized by the will to give away the land of the testator. The evidence is conflicting as to whether there was a consideration paid by Abraham and Walter McFarland, Jr., for the deed which they received from the widow, and not finding said evidence sufficient to warrant us in overturning the judgment of the circuit court, I concur in the result of the majority opinion affirming said judgment.