91 Ind. 221 | Ind. | 1883
— The will of Henry South contains these provisions: “ I will and bequeath unto my beloved wife, Sally South, all my estate both real and personal, she paying all my just debts and funeral expenses, so long as she may live, and what may be left at the time of her death, of either my personal or real estate, to be sold at public sale, and the proceeds thereof to be equally divided between my heirs, under the laws of this State, and I hereby give my said wife full power and authority over the same during her natural life.”
“ I also give her full authority to dispose of any of my personal property during her life that she may think proper, either for the payment of my debts or for any other purpose that she may see proper, or to make any changes'in the same that she may think prpper, and if my personal estate shall become exhausted, then, and in that case, I’ hereby authorize my said wife to sell and convey the real estate in as full and
It is plain that the testator intended to vest a right in his wife to all of the property of which he died seized, and that he gave her an absolute power of disposition. The effect of the provisions we have quoted is to invest her with a right to consume all the property she chooses for her maintenance and comfcrt, and to sell, at her election, such property as she deems necessary for her comfortable support. That an estate is vested in her with full power of disposition, can not be doubted; the only question is as to the character of the estate, whether for life or in fee. The general rule is this: Where an estate is given in general terms, without words ' of inheritance, but with full power of disposition, the estate is a fee. But where the estate is given for life only, the devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will be annexed, unless there be some manifest general intent of the testator which would be defeated by adhering to this particular intent. 4 Kent Com. (12 ed.) 536. It is not, however, necessary to decide whether Mrs. South took a fee or a life-estate; it is sufficient for the purposes of the case to ascertain that she took an estate in the land coupled with an absolute power of disposition, and upon this point there can be no reasonable debate.
Conceding that the widow had a life-estate and not a fee, still that life-estate was joined with an absolute power of disposition, and where this is so the deed of the devisee intended as an exercise of the power will convey a fee. The deed passes not merely her life-estate but also the estate of which she had the absolute right of disposition. This is the express
If the instrument executed by the person having an estate-in the land and the absolute power of disposition indicates an intention to exercise that power, it is a valid execution of' it, and will be upheld in favor of a purchaser for value. A general warranty deed executed for a consideration equal to-the value of the fee and professing to convey the fee is a valid execution of the power. This is plainly so on principle,, since to hold otherwise would be to declare that the grantor did not intend to convey the estate the deed engages him to-do, and that the grantee meant to receive a less estate than that which the deed purports to convey. It would also involve the absurdity of assuming that the grantor intended to charge himself with a liability upon his covenants of warranty in a case where there rested on him not the slightest, obligation to take upon himself any such responsibility. The authorities, with remarkable unanimity, agree in holding that-the question whether the conveyance is in execution of a. power or not depends solely upon the intent. If, from the tenor and effect of the deed or will by which title is conveyed, the intent to execute the power is inferable, there is a valid execution of the power, Or if, without referring to the power,, the will or deed is not operative as the parties evidently intended it should operate, then it will be held a valid and effective execution of the power. It is not necessary that the power should be referred to in the deed or will, where the intent is otherwise manifested. • The Supreme Court of the United States, speaking by the great equity judge, said:
The case of Dunning v. Vandusen, 47 Ind. 423 (17 Am. E. 709), recognizes, very fully and explicitly, this general doctrine, but did not apply it to that case because it did not there appear that the consideration corresponded to the value of the estate in fee, and, as said in Clark v. Middlesworth, supra, this clearly distinguishes the case from one where the consideration paid is the value of the fee. That the consideration paid for the land in the case of Dunning v. Vandusen, supra, was not such as to raise the presumption of an intent to convey the fee is shown by the fact that the complaint showed the value of the fee to be very greatly in excess of the consideration expressed in the deed, for it is averred in the complaint in that case that the rental value of the tract for which the grantee paid $500 was $500 per year, and of the other tract, for which $270 was paid, $250 per year. This was the admitted statement of the pleading, and in the face of it the court could not well have presumed an intent to convey both the life-estate and the remainder in fee. On the facts of the case, the decision was correct, and in harmony with the general principle which we
In Amory v. Meredith, 7 Allen, 397, the subject was well discussed, and the court repudiated the strict English rule and quoted what Lord St. Leonards said after reviewing the old English cases. “It is impossible not to be struck with the number of instances wheré the intention has been defeated by the rule distinguishing power from property.” Against the strict rule of Clere’s case and in favor of the one that the intention will control, however manifested, or however established, will be found, among others, the cases of Willard v. Ware, 10 Allen, 263; Bangs v. Smith, 98 Mass. 270; Funk v. Eggleston, 92 Ill. 515 (34 Am. R. 136); Wimberly v. Hurst, 33 Ill. 166; Butler v. Huestis, 68 Ill. 594 (23 Am. R. 589); Andrews v. Brumfield, 32 Miss. 107; Munson v. Berdan, 35 N. J. Eq. 376 ; White v. Hicks, 33 N. Y. 383; Drusadow v. Wilde, 63 Pa. St. 170. In the latter case it was said: “ It is only when the words of the will may be satisfied without supposing an intention to execute the power that it is no execution.” It is said in Pomeroy’s Equity Jurisprudence, sections 589, 590, that equity will enforce the defective execution of a power, because, “An attempt having been made to execute the power, which is only formally defective, equity imputes to the donee in making the attempt an intent to fulfill this quasi obligation.” Judge Story says: “And where the intention to pass the property comprised in the power is clearly established, the court will give effect to the intention, although there is no intention expressed to act in execution of the power.” 1 Story Eq. 174 a.
We turn now to the cases directly supporting the proposition that a deed of general warranty, purporting to convey a
There are many well considered American cases holding that where one having a power of disposition exercises it by will, it is a valid execution of the power without referring to or reciting it. The intent manifested by the will is all that is necessary to execute the power, and this intent is sufficiently evidenced by a disposition of the entire interest in the property. There is no material diversity of opinion upon this subject, and the rule is to be taken for good and established law, as truly it is upon sound principle. If it be sound law, then it applies, as indeed the cases hold, to deeds as well as to wills; it is impossible to discover any difference between the instances, for they are but instances, resting upon one fundamental principle, and illustrated by many cases.
The rule is as just in operation as it is strong in principle. To hold that the failure to refer to the power avoids the conveyance is to sacrifice the substance to the shadow. Of little, trivial importance is the mere form of the instrument as compared with the substance of the transaction and the intention of the parties. A woman having a clear right to sell the fee of the land for her support, selling it for that purpose, executing a deed professing to convey the whole estate in the land to her grantee, he yielding a consideration reasonably equiv
We affirm the judgment.