Lead Opinion
■ If the trusts created by one of the deeds hereinafter ,dé-|cribed were impliedly revoked and annulled by the exercise
By a deed dated, Jany. 14, 1903, Thomas L. Broun an Mary M. Broun, his wife, conveyed to Fontaine Broun an Angus W. McDonald, Trustees, certain real estate situate in Boone and Kanawha counties, and consisting of a tract c '2,000 acres and undivided interests in several other tract: equivalent in all to about 5,000 acres, upon the followin terms; for the use and benefit of the wife for the joint live ■of hersélf and her husband; the husband for his life, in cas he should survive the wife; their three children in fee, sul ject to a provision for the wrife, in case she should survive th husband; the children in fee without incumbrance, afte the death of the husband, he having survived the wife, an McDonald, Trustee, being required equally to convey th land to one of them and trustees for the others.
This deed, however, contained indisputable powers of o;evi •cation and appointment, which the husband, after the deal -of his wife, admittedly and effectively exercised by joinin •one. of the trustees, Angus W. McDonald, in the execution c another deed, dated June 30, 1911, by which the lane ■•granted by the deed of January 14, 1903, and other land making an aggregate of about 10,000 acres, were conveye to four trustees, E. Fontaine Broun, Charles M. Broui Philip S. Powers and C. Beverly Broun. In this deed, 1 "was the party of .the first part, Angus W. McDonald, Truste
By an instrument signed, sealed and acknowledged by im and' dated, May 8, 1912, Thomas L. Broun made some Iterations of the deed of April 10, 1911, among which was ne giving his collateral kindred only proceeds of the sale f the lands and timber. and rentals and royalties arising rom the lands. Charles M. Broun, Philip S. Powers and E. ’ontaine Broun, Trustees, were given title to all of the and, but C. Beverly Broun, Trustee, was authorized to eeeive one-fourth of the proceeds of sales of land and tim
Under the reservations of power above mentioned, Thom; L. Broun either revoked the powers of the trustees and m terially altered the dispositions of property made by tl deed of April 10, 1911 and the instrument dated, May 1912, or modified them as to such dispositions, without abr gation of the powers of the trustees, by his will appointir Joseph Ruffner and Robert E. McCabe executors and givir all of the lands to Louise Fontaine Jackson, Edward Fo: taine Broun and Ann Conway Bowers, his three childre The will was dated, August 13, 1913, and admitted probate, March 30, 1914.
That the power reserved could be exercised either by wi or by deed' is put beyond question by the authorities. Tl designated means of execution thereof is “a written instr ment signed, sealed and acknowledged.” That may 1 either a will or a deed, for both are written instrumenl A will need not always be acknowledged, but-it may be ai sometimes must be. Code, ch. 77, sec. 3. There is langua; in the reservation clause that may import intent to r quire execution of the power by an instrument taking e feet in the lifetime of Thomas L. Broun, which would e elude right to execute it by a will taking effect at the m ment of his death; but such a limitation would arise on by implication, an unnecessary implication which the rul of construction do not permit. Graham v. Graham, 23 W. Va. 36, 38; Beard v. Beard, 22 W. Va. 130, 136; Earle Coberly, 65 W. Va. 163; Boisseay v. Aldridges; 5 Leigh 222 Southerland v. Sydnor, 84 Va. 880. "The mere questh whether a will comes -within the words instrument in wr: ing has long ago been decided in the affirmative, and the is neither decision nor dictum throwing any doubt on that Sir R. T. Kindersley, V. Chancellor, in Orange v. Pickfor 4 Drew. 363, 62 Eng. Reprint, 140. “If a power be creat
Whether a power to be executed by an instrument in writ-g could be well executed by a will, without compliance th requirements as to form and solemnity beyond those Lposed by the statute of wills, has been decided both affirm-ively and negatively in England. In Buckell v. Blenkhorn, Hare 131, 67 Eng. Reprint 857, and Collard v. Sampson, Beav. 543, it was held that the power could be- so exe-ted. Upon an appeal, the latter was reversed by a judged; delivered by Lord Justice Turner, 4 De G. M. & G. 4, 43 Eng. Reprint 493. About a year later, 1854, the estion arose again in West v. Ray, Kay 385, 69 Eng. print 163, and was negatively disposed of. This was fol-ved by a like decision in Taylor v. Meads, 4 De G. J. & 597, 46 Eng. Reprint 1050. There can be no doubt, there-■e, that the present English construction of the statute dudes the operation of this will as an exercise of the vver, if acknowledgment of the instrument is a substantial [uirement and has not been complied with. The will is ned and sealed but it bears no certificate of acknowledg-nt or other proof thereof.
sec. 4 of eh. 77 of our Code is substantially the same as . 10 of the English Wills Act. 1 Victoria, ch. 26. Our tute was taken from the English Wills Act, after the de-on in Buckell v. Blenkhorn, rendered in 1846 and before t rendered in Collard v. Sampson on appeal, in 1853. It 3 incorporated into the Virginia Code of 1849. Hence,
The rule of construction just referred to rests upon pi sumption, of course, and may not be absolutely binding up the courts'of the adopting state. In the case of the adopti of a statute of a foreign jurisdiction before its eonstructi has been fully determined by the courts of such jurisdicth there might be good reason for adoption of the eonstructi ultimately and finally put upon it by the courts of its orig
There is some technical force in the later English decisio repudiating the doctrine of Buckell v. Blenkhorn. Wills, i powers of appointment, constitute the subject matter the statute. The latter fall within the scope of the act, so far only as they are created by will or susceptible of e cution by will.' Powers not created by will nor suscepti of such execution do not fall within it at all, either whc or partially. Being in derogation of the common law e in restraint of liberty, the statute falls under the rule strict construction. Although these two propositions not referred to in the opinions, the great jurists who r dered the decisions evidently had them in mind and foun their conclusions largely upon them. In Collard v. Samps Lord Justice Turner said: “The question is, what is meaning of the words ‘power of appointment by will,’ c tained in that section — whether it embraces every case which a power of appointment may be exercised by will applies only to cases in which the power is in terms givei be so exercised. The language of the Act leaves this p< in doubt.” After having shown that the interpretal clause of the act defined the word, “will” as includin power of appointment by testament or codicil, or writing the nature of a -will, he said: ‘ ‘ But the Act goes no furt
On the other hand, Sir James- Wigram, in Buchell ■ Blenlchorn, expressed the opinion that execution of such power by will was clearly within the statute. His cogei -reasoning follows: “Now, by the late Statute of Wills it I ■provided that in the execution of wills one given form shal .'he observed, and that such form shall be an equivalent fl «every arbitrary form of execution which the donor of I power may prescribe. It was not at the expense, but : .■favor and for the benefit of such donors, and in order th their intentions might not be disappointed by the neglect 'useless forms that this legislative provision was made, 'must presume, in this case, that Sarah M’Lauehlin made t •-deed of the 1st of September .1843 with knowledge of t decisions upon the word ‘writing,’ and with knowledge al ■ of the provisions of the Wills Act. Why, then, should ■ deprive her of the benefit of the Act, for that is what I e ■asked to do? I am asked to deprive certain objects of b .bounty of the gifts she intended for them, only because .form has not been observed which the Legislature has c , dared to be useless. What rea-son then is there for sayi ■that a will shall not, since as well as before the statute, deemed a writing within the terms of the deed? If the t -tatrix had used the word ‘will’ instead of the word ‘wi ing,’ the statute would equally have applied.”
The conclusion expressed in Buckell v. Blenhhorn is im . ifestly permissible under the rule of strict constructs Lord Justice Turner admits, in Collard v. Sampson, tl • the power mentioned in the statute is included in the povfl ■given by the instrument. Sir James Wigram, in the otlfl .case, says a decision against the validity of the execution fl ■ will would be “against the spirit and policy, as well H .against the letter, of the Act.” What falls within both jfl
Though wills and codicils, not deeds or other instruments, constitute the subject matter of the statute, the execution of powers of appointment by will is expressly included. The uncertainty is limited to the extent of such inclusion. It-is not expressly defined, and the context does not necessarily limit it. The first clause of the section is broad enough in its terms to include any power that can be exercised by a will. It says no appointment made by will, “in the exercise of any power,” shall be valid, unless etc. The second clause is not definitive of the instrument or provision vesting the power. While it mentions “a power of appointment by will, ’ ’ its terms do not even suggest the necessity of the creation of such a power in specific, as contradistinguished from general, terms, and one created by the use of general terms ■ is as valid and effective as one specifically conferred. Hence, the statute seems grammatically, logically and legally to include both cases. Of course, as suggested and held, there is a difference, but that difference is not made the ground of
To say the legislature has not provided for the case in question necessarily narrows and restricts the meaning and operation of the terms of the act. The judicial observations of lack of provision, therefore, necessarily mean no more than that the act has made no specific provision for it. Such provision was wholly unnecessary and would have been unusual, in the absence of some principle of public policy or rule of construction working an exception from the operation of the general terms of the act, by implication. No such principle or rule is invoked in any of the decisions overruling Buckell v. Blenkhorn. To give the statute effect commensurate with the extent of its general terms does not permit it perceptibly to innovate upon the law of deeds or other instruments. In ease of the execution of such a power by deed, all of the prescribed formalities and solemnities must .be complied with. Nothing is abrogated except in the case of execution by will, and that falls directly within the terms of the statute and constitutes part of its subject matter. .Tt places no restraint upon the liberty of the creator of the power for he may always limit the mode of execution to a deed or other instrument operating inter vivos, and, if he does not, he may well be presumed to have intended to place it under the operation of the statute. While the distinction between the form of the instrument of execution and the solemnities thereof, marked by Sir W. Page Wood, in West v. Ray, is a perfectly obvious one, it does not profess to stand upon any recognized ground of implied exception from the operation of the general terms of a statute. Some of these grounds, as defined by the English and American decisions, are briefly stated in Conley and Avis v. Coal & Coke R’y. Co., 67 W. Va. 129, syl. pt. 27, in the following terms: “In determining the meaning of a statute, it will be presumed, in the absence of words therein, specifically indicating the contrary, that the legislature did not intend
The express terms of this act rebut the presumption against intent to alter the common law as to the execution of powers of appointment given to be exercised by will, whether so given in definite and specific terms or in general terms. The reasons of public polic3r impelling the enactment of the law apply with equal force to both classes of powers of appointment by will. The evil remedied by the act is the same in each class, as Sir W. Page "Wood admitted in his opinion in Collard v. Sampson. Omission to relieve from compliance with useless and harmful formalities, in the execution of powers of appointment otherwise than by will, signifies intent not to deal with the subject of execution of powers generally, but it does not import intention to restrain the general terms of the statute to one class of powers susceptible of execution by will. Nor is there any marked difference between the nature of a power given in general terms to be executed by will and one given, in specific terms to be so executed. They differ only as to the forms of expression, the language, in which they are created. Each is a power susceptible of execution by will. When executed, each produces exactly the same legal result. If the power is given, in express terms, to be executed by deed or by a will made with solemnities not required by the' statute, it can be executed by will without compliance with such solemnities. If it is conferred in general terms broad enough to permit both kinds of execution, the words used do not indicate any intention to require such 'compliance, nor do they point out any circumstance tending to give the instrument a different nature.
Although this question seems never to have been decided
Affirmed.
Dissenting Opinion
dissenting:
I do not think a power of revocation and re-appointment, to be executed "by a written instrument, signed, sealed and acknowledged,” is executed properly by a holograph will, not so signed, sealed and acknowledged. By the common law the mode prescribed for the execution of the power must be strictly pursued; if it is to be exercised by will only, a deed will not answer, aind vice versa. 2 Min. 741, and Williamson v. Beckham, 8 Leigh 20. If Mr. Broun’s will had been sealed;.and acknowledged, it would have been a literal compliance with the condition, for even though it 'was testamentary in character, it would also have been the kind of a writing designated. But not being acknowledged, it is not such a. writing as the donor had prescribed. The court has no right to imply that the acknowledgment is an immaterial requirement that can be dispensed with. There having been no express provision for a revocation and re-appointment by will, I do not think section 4, chapter 77, Code, has any application, for the reason stated by Lord Justice Turner in Collard v. Sampson, and quoted in the majority