Thorington v. Thorington

Dec 15, 1886

Versions:82 Ala. 489

SOMERVILLE, J.

— Thе Chancery Court in this- State is invested with jurisdiction, and it lias long been its practice, to decree the sale of lands belonging to infants. This jurisdiction does not depend upon the nature of the estate, as bеing absolute or contingent, but extends as well to estates in remainder as to those of any other character. It rests upon the рower and duty of the Chancery Court to protect infants, and to tаke care of, and preserve their estates, and to take such steps as to promote their best interests.— Goodman v. Winter, 64 Ala. 410, 435; Ex parte Jewett, 16 Ala. 410.

That the decree of sale made by the chancellor in this case was a prudent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and wise exercise of this jurisdiction, we can not entertain a doubt.

2. The only plausible objection, which could probably be suggested against the exercise of this jurisdiction, is the fact that the life-tеnant of the land, who herself is one of the complainants to the bill or petition, was invested by the *491will of the testator with the power оf appointment to her children, such appointment to be exercised by will. This raises the question, so long mooted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in England, whether a tеnant for life, with a power of appointing or disposing of the рroperty by will to the children of the testator, may release or extinguish the potoer. There was formеrly some doubt as to whether this could be done, but the more recent view of the English courts supports the proposition, that the donee of such a power, if in gross, and not appendant, or simply collateral, may release or extinguish it. The authorities on this question are clear, and to the point; and our view is that the rule declared on this subject by the Master of the Rolls, in Horner v. Swann, 1 Turner & Russell, 430 (11 Eng. Ch. Rep. 234), announcеs ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the correct principle. Following Smith v. Death, 5 Madd. 371, decided by the Yice-Chancellor but a few years previous, it was there expressly decided, that such a power could be released or extinguishеd by the tenant tor life suffering a recovery. It was placed on the ground, that be had dealt with the estate so as to create interests inconsistent with the subsequent exercise of the power. The rule declared in Horner v. Swann, supra, has been followed in this country, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍may now be cоnsidered as settled law. — Norris v. Thompson, 10 N. J. Eq. Rep. 307, and cases cited p.314; Brickley v. Guess, 1 Russ. & Myl. 440 (5 Eng. Ch. Rep. 441); 1 Sugden on Powers, 99-105; Wash. Real. Prop. (4th Ed.) 308, 309; 4 Kent, 346.

Thе power of appointment or disposition, given by the testatоr’s will to the life-tenant in' this case, was not a simply ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍collateral, or mere naked power, nor one appendant to the еstate. It was what is commonly called'a power in gross, authorizing one who has an estate in the land to create by appointmеnt such estates only in the testator’s children as will not attach on the interest limited to, or actually vested in the donee ; or, in other words, such estate only as will not take effect out of the estatе given to such donee. The estate authorized to be created in the children by appointment of the donee does not bеgin until her own life-estate shall have ended ; and this was the very illustration of a “power in gross” given by Hale, Ch. B. “It is a power in gross, because the estate for life has no concern in it.” 2 Wash, on Real Prop. (4th Ed.) 639, 305. As sаid by Mr. Perry, in his work on Trusts, “ If the power to sell, or appoint, is in gross, or belongs to a person haviug an interest in the estate, such person may relinquish it; but, if it is collateral simply, the donee of the power cannot extinguish it.” — 2 Perry on Trusts (3d Ed.), § 765.

The decree is free from error, and must be affirmed.