79 Ga. 278 | Ga. | 1888
In December, 1883, Mrs. Terry brought ejectment against Rodahan, to recover about forty acres of land lying within, and adjacent to Carrollton, together with mesne profits. Several demises were laid in the declaration, but only her own had any essential bearing on the result. Her mother (Mrs. Burke), who died testate in October, 1862, owned the premises, and disposed of them by will. The will bore date September 7th, 1862, and was admitted to probate in common form and recorded in January, 1863, and letters testamentary were ordered to issue. Her children, three in number, a son and two daughters, were the objects of her bounty; to them she bequeathed the whole of her estate, including slaves, choses in action and other personalty, together with the premises involved in this action. The third item of-her will was as follows:
“ I will and bequeath to my aforesaid children the house and land where I now live, consisting of some forty acres, more or less, in the town of Carrollton; to have and to hold the same to them and their heirs forever in fee simple.”
The seventh item was in these words:
“ I hereby direct, request and fully empower my husband, Archibald T. Burke, the father of my children, to take charge of all the aforesaid property at my death,-and manage it to the best-advantage for my dear little infant children, and in regard to said property to act as their trustee, after settling my debts; and he is fully empowered, either in the capacity of trustee or executor, to sell any of the*281 above property, either at private or public sale, should he deem it for the interest of said children, ‘and vest the proceeds of the sale in other property, or put the money at interest, as he thinks best, he being clothed with full and ample power to manage said property' as • he thinks for the best interest of my said children. And as my said .children arrive at the age of twenty-one years, or in case the girls should marry, I direct my said husband to give each one off her equal share of the property. And it is my express wish and intention that in no case shall the property that I have hereby given my daughters, or either of them, be subject to any debt contracted by their or either of their husbands, either before or after marriage, but should be for the mutual benefit of them and their husbands or husband,'and their children should they have any. And the little property that I have hereby given my son, I direct his father, when he becomes of age, to turn it over to him, if he is sober, steady and industrious, and shows a disposition to take care of it; but should he, unfortunately, be wild and dissipated and a spendthrift, I hereby direct his father to withhold from him the little that I have here left, until such time as he becomes sober, steady and capable of taking care of it.”
The eighth and last item appointed the husband sole executor. The first item mentioned a debt due to Mandeville and Stewart as the only one which the testator owed, directed the executor to pay it with as little delay as possible, to collect and apply certain money due her for the hire of negroes, and should the same not be sufficient to discharge said debt, to “ hire said negroes or such numbers of them as he thinks proper for the purpose of discharging 'said debt, unless he should meet with a favorable opportunity to sell said land.”
Of the three children, Mrs, Terry, the plaintiff, is the sole survivor, her sister having died in November, 1865, aged six years, and her brother in October, 1867, aged ten years. Her father, A. T. Burke, the executor and trustee, died in January, 1882. The plaintiff was born in April, 1856, and married in April, 1874. This action was commenced on December 29th, 1888.
The defendant, Rodahan, pleaded the general issue; prescription by seven years adverse possession with color of title, prescription by twenty years adverse possession j also the limitation act of 1869.
Supposing all these facts established as to purchase, payment and taking a conveyance, did the deed of A. T. Burke, making no reference to the power and containing no allusion to his representative character, either as executor or trustee, operate as a valid execution of the power of sale conferred by the will? It is manifest from the record that though Burke originally bargained with Mandeville and Stewart for the property, he never acquired title to it in his own right, but that Mandeville and Stewart conveyed it in the year 1859, with his consent, to Boggus, as trustee for Mrs. Burke, and that Mrs. Burke was 1he sole and exclusive owner at the time of her death. Her will was probated and admitted to record on Burke’s application as the nominated executor, and the instrument contains a distinct reference to a marriage settlement conferring upon her power and authority to dispose of her property. Burke’s assent to the will, if it needed his assent to render it valid, was thus beyond question. His precise legal relations to the premises in dispute at the time he is alleged to have conveyed to Rodahan was that of executor to his wife’s will and trustee for the children, with power to sell in either capacity, at public or private sale, and with no interest whatever in the property, legal or equitable, as an individual. His deed, if left to work by his own interest, would not work at all, for he had no interest; it had to work by the power or pass nothing.
Amongst the multitude of cases touching the execution of powers without recital of the power or any reference to its existence, comparatively few relate to sales of real estate by executors or trustees; the great mass of them deal with the power of appointment, and most of these concern appointments by will. There is, however* a gen
“ A donee of a power may execute it without referring to it, or taking the slightest notice of it, provided that the intention to execute it appear.
“ Where a man has a power to limit uses, and no power to convey the land, if he convey or devise the land generally, and the circumstances required to the execution of the power as to subscription, witnesses, etc., are observed, the conveyance or devise shall inure as a limitation of the use, because otherwise it would be void.
“ And as a general disposition of the very property will amount to an execution of the power, so where there are several powers in one person over different estates, a like disposition of them all will operate as an execution of all the powers.
“ If a man have two general powers over the same estate, with different circumstances, and do an act without referring to the powers which may be valid as an exercise of one of them, it will be deemed an execution of that power which will support the disposition.” 1 Sugden on Powers side pages, 356, 357.
“ Where, however, the power is not referred to, the property comprised in it must be mentioned, so as to manifest that the disposition was intended to operate over it; the donee must do such an act as shows that he has in view the thing of which he had a power to dispose.” Id. 367.
“ Upon these distinctions it has been held that, where otherwise part of the disposition would be void and the words remain unsatisfied, the words, if specific in their
“ The power may be executed without reciting it, provided the act shows that the donee had in view the subject of the power."... The general rule of construction, both as to deeds and wills, is, that if there be an .interest and power existing together in the same person, over the same subject, and an act- be done without a particular reference to the power, it will be applied to the interest and not to the power. If there be any legal interest on which the deed can attach, it will not execute a power. If an act will work two ways, the one by an interest, and the other by a power, and the act be indifferent, the law will attribute it to the interest and not to the authority, for fictio oedit veritatiP 4 Kent’s Com. side pp. 234, 235.
“The donee of a power may execute it without expressly referring to it, or taking any notice of it, provided that it is apparent from the whole instrument that it was intended as an execution of the power. The execution of the power, however, must show that it was intended to be such execution ; for if it is uncertain whether the act was intended to be an execution of the power, it will not be construed as an execution. The intention to execute a power will sufficiently appear — (1) when there is some reference to the power in the instrument of execution; (2) where there is a reference to the property which is the subject-matter on which execution of the power is to operate; and (3) where the instrument of execution would have no operation, but would be utterly insensible and absurd, if it was not the execution of a power. Thus, if a donee of a power to sell land have also an interest in his own
In Allison vs. Kurtz, 2 Watts, 185, a testator directed that all his lands be sold by his executor, and that the proceeds, over and above certain pecuniary legacies to his daughters, be divided amongst his sons, one of whom, Robert by name, qualified as executor of the will. The executor did not sell, but the sons, regarding the lands as their own, divided them by metes and bounds, and interchanged warranty deeds of bargain and sale amongst themselves so as to give effect to their scheme of voluntary partition. The deeds referred to the father’s will, but described it as bequeathing the lands directly to the sons. Richard, the executor, participated in this transaction, but only as an individual, not as executor, executing deeds as did the rest in his private and personal capacity. A parcel of land thus conveyed to one of his brothers, was sold by the latter on the same day, and afterwards passed into the hands of Kurtz, who was a purchaser for value. Richard, as trustee for his sisters, whose pecuniary portions had
Much is said in the books of an intention to exercise the power, and where a purchaser for value is not concerned, the absence or presence of such intention in actual consciousness as matter of fact, may be the general test of efficacy. But even then it is questionable whether a certain and specified intention to dispose of the identical
Every purchaser of realty for value takes the risk of his vendor being clothed with power to sell at the time of the sale, and by the mode of sale adopted; but he is not bound to know from whence the power is derived, or whether it springs from ownership or by delegation intrust.. It is enough that there be authority to sell and convey when and how the sale is made, and the conveyance executed. If the vendor actually sell and convey, his intention to do so is manifested, and whether in his own mindk he means to do it in one character or another, the purchaser-need not know nor inquire; provided only that the sale> and conveyance be such as the vendor has a legal right tc» make. If the rules of law applied to the conveyance in; the actual circumstances treat it as suflicient to pass the-title, it will have that effect. Of course the purchaser" could derive no title through any breach of trust, or fraud,, on the part of the trustee, of which he had notice or to/ the accomplishment of which he knowingly contributed.. Nor-would he, as against beneficiaries of the trust, take any title which the trustee could not impart at the time in. the mode pursued. Knorr vs. Raymond, 73 Ga. 774, and. cases cited.
Our conclusion is, that if Eodahan purchased from Burke, not knowing of the will, paid the purchase money, and took a deed from Burke, he thereby acquired the title, both legal and equitable, to the premises in dispute,
We have above indicated sufficient cause for disapproving this charge, but were the charge applicable to the facts of the case, it would still be open to the grave question whether a sale of land made by a person in his individual capacity, attended with payment of the purchase money, and entry into possession by the purchaser, would be a valid execution of a power to sell lodged in the vendor as executor or trustee. Is it not going far enough to treat an individual deed as sufficing to execute a trust power ? Are there not considerations both of principle and policy against allowing a trustee to part with title to the trust land, especially to contract it away as his own, without affording written evidence of alienation ? Powers of selling realty are to be executed in the mode, if any, prescribed in the instrument which creates them; and if none is prescribed, should it not be implied that the mode in general use for conveying land is the one to be observed? Crabb Real Prop. §§1987, 2032; Boshart vs. Evans, 5 Whart. 562. In Silverthorn vs. McKinster, 12 Penn. St. 67, a sale of land made by executors as such, though in parol, with possession delivered, was held a good execu
If for any reason the deed would not operate to pass title under the power of sale in the will, then if Burke afterwards inherited fromhis deceased children an interest in the premises, that interest would pass to Rodahan by virtue of the deed, on the principle of estoppel. Code, §2699;. Parker vs. Jones, 57 Ga. 204. Of course, this aspect of the case as to the effect of the deed on that interest, in the event supposed, would be proper matter for instructions to the jury.
Judgment reversed.