| Ark. | Dec 2, 1905
(after stating the facts.) This is an appeal from a judgment of the Boone Chancery Court, The two questions discussed by counsel are, first, did the executrix under the will of Matthew Bristow have power to convey a fee in the land, and, second, if she had such power, was the deed made by her and Anderson made under such power? or, in other words, did she by such deed execute the power ?
It is very clear that Mrs. Bristow took only a life estate under the will. But whether she had under the will power to convey the fee for the purposes therein named, we need not determine, for to our minds it is plain that, if such power, existed, it was never executed.
The question of whether a deed is made in execution of a power contained in a will is one of intention, to be gathered from the terms of the deed and from the circumstances under which it was made. It is not absolutely essential that a deed should refer to the power in order to execute it; but when the deed is silent on that point, and the maker has an interest in the land that will pass by the deed, without regard to the power, this, if not conclusive, is a circumstance tending strongly to show that there was no intention to execute the power. Ridgely v. Cross, 83 Md. 161" date_filed="1896-03-25" court="Md." case_name="Ridgely v. Cross">83 Md. 161; Patterson v. Wilson, 64 Md. 193" date_filed="1885-06-25" court="Md." case_name="Patterson v. Wilson">64 Md. 193; Lee v. Simpson, 134 U.S. 572" date_filed="1890-04-07" court="SCOTUS" case_name="Lee v. Simpson">134 U. S. 572;. Blake v. Hawkins, 98 U.S. 315" date_filed="1879-01-18" court="SCOTUS" case_name="Blake v. Hawkins">98 U. S. 315; Lanigan v. Sweany, 53 Ark. 185" date_filed="1890-04-26" court="Ark." case_name="Lanigan v. Sweany">53 Ark. 185.
. Now, in this case Anderson, one of the devisees under the will, joined in the deed with Mrs. Bristow. If the intention was to execute the power in the will, there was no occasion for one of the devisees to join in the deed. The fact that one of the devisees joined in the deed with the widow, taken in connection with the fact that they sold the land for about one-third of its actual value, that the widow did not convey as executrix, and that the deed makes no reference whatever to the power, goes to show that they were only selling their individual interests in the land, and that there was no intention to execute the power. The language of the deed clearly indicates this, for the grantors therein covenant that they are “lawfully seized of said land as heirs and legatees of Matthew Bristow, deceased.”
On the whole case, we are of the opinion that there was no execution of the power contained in the will, and that the grantee under the deed took only the individual interests of Mrs. Bristow and Anderson in. the land. It follows that the judgment of the chancellor was right, and it is therefore affirmed.