23 Wis. 336 | Wis. | 1868
It is evident from the provisions of the will of Clarke J. Towle, that his mother, Anna Towle, took only a life .estate in the land devised, with a power to sell the entire interest. Her interest is expressly limited to her own life, and the remainder, in case the land was not sold, or any residue of the proceeds of a sale, that might remain at his mother’s death, was devised to his brother.
It appears that this brother died before the mother, and that the father, who is the appellant, was the sole heir at law of this brother, and of Clarke J. Towle. It also appears that, before her decease, the mother sold the land by a quitclaim deed to the respondent, for the consideration, as expressed in the deed, of one thousand dollars. The land was afterward sold by the appellant as administrator, under a license, and the present controversy is between the appellant, claiming the
The rights of the parties depend, therefore, entirely on the effect of that conveyance. If it can be construed as an exercise of the power of sale given by the will, then it con veyed the entire estate to the respondent, subject only to its being taken by proper proceedings to pay the debts of the testator. And if so taken, the respondent would be entitled to any surplus that might remain. But if that deed is to be regarded, not as an exercise of the power of sale conferred by the will, but only as a conveyance of whatever interest Anna Towle had in the land in her own right, then it merely operates to convey to the respondent her life estate, and on hei death, the estate would have vested in the appellant, as heir at law of Clarke J. Towle or of Jackson Towle.
The form of the deed does not appear in the case, any further than by the statement that it was a quit-claim deed; and by that, I understand a quit-claim deed in the ordinary and usual form. Such a deed contains no apt words indicating an intent to sell under the power. On the contrary, its language naturally and properly relates only to the interest which the grantor owned in the land. And where such is the case, the party making the conveyance actually owning an interest upon which It can take effect, it is held to be only a conveyance of that interest, and not an execution of the power.
In Sugden on Powers, chap. 6, § 8, the question, —“What amounts to the execution of a power, where the donee has an interest in the estate,” is considered. It is there said: “ First, it is well settled that where a man has both a power and an interest, and does an act generally as owner of the land, without reference to his power, the land shall pass by virtue of his ownership. He has au estate grantable in him, and also a
Some exceptions are afterwards stated, where, when the conveyance could not have the effect clearly intended by the parties except by supposing it to have been executed under the power, it -would be so held, although the power was not expressly leferred to. But this case cannot fall -within these exceptions, foi the reason that an ordinary quit-claim deed evinces no intention to pass any thing more than the grantor’s interest, and it has full effect for that purpose.
The following cases also sustain the conclusion that the quitclaim deed of Anna Towle would pass only her own interest, and would not be held as an execution of the power ; Griswold v. Bigelow, 6 Conn. 258; Lockwood v. Sturdevant, id. 385-7; Johnson v. Stanton, 30 id. 297; Mory v. Michael, 18 Md. 227.
The appellant, as heir at law of either Clarke J. or Jackson Towle, was entitled to the surplus, and the order assigning it to Ewing must be reversed, and the cause remanded for further proceedings.
By the Gourt. — Ordered accordingly.
