Denson v. Pine State Creamery Co.

*201 Clarkson, J. It is contended by defendant that tbe deed from Bradley S. Johnson, individually and as trustee, to plaintiff Lee A. Denson, did not convey a perfect title for any lands wbicb passed to Bradley S. Johnson, trustee, by virtue of item 6 of the will, for the reason that the said land does not refer to the power under the will conferred by item 6. In item 10, the trustee is given power to sell and convey “the whole or any part” of the property, “without liability on the part of any purchaser to see to the proper application of the purchase money.” While in item 6, the sole provision is “with power to said trustee to sell and reinvest the same whenever he shall think best.” Bradley S. Johnson did not account for or reinvest the fund under item 6. The pertinent portions of the deed showing the exercise of power in the deed to Lee A. Denson, as to the land in item 6, are as follows: (1) “This deed made this 15 September, 1916, by Bradley S. Johnson and wife, Nannie E. Johnson, and Bradley 8. Johnson, trustee, under the will of Mrs. Jane Claudia Johnson, of Goochland County, Virginia, parties of the first part, and Lee A. Denson, of Ealeigh, Wake County, North Carolina, party of the second part”: (2) “Witnesseth: That the said Bradley S. Johnson and wife, Nannie E. Johnson and Bradley 8. Johnson, trustee, under the will of Mrs. Jane Claudia Johnson, in consideration of one hundred dollars and other valuable considerations,” etc. (3) “Being lots one, two, three, four and five, and the irregular shaped alleyway, shown on the map, survey and plat of E. G. Ball, engineer, recorded in Book of Maps, 1915, at page 40, in the office of the register of deeds of Wake County, and being part of the lands devised to Bradley S. Johnson and¡¡ Bradley 8. Johnson, trustee, under the will of Mrs'. Jane Claudia Johnson in Book D, at page 341, register of deeds office of Wake County.” (4) “In testimony whereof, the said Bradley S. Johnson and wife and Bradley 8. Johnson, trustee, have hereunto set their hands and seals the day and year first above written. Bradley S. Johnson (Seal) NaNNie E. JohNSON (Seal) Bradley S. Johnson, Trustee. (Seal)” Under item 10 of the Jane Claudia Johnson will, Bradley S. Johnson was the owner in fee of the land at the time he conveyed a part of the land willed to him under item 10 to Lee A. Denson — he did not have to exercise the power contained in that item. The trust had ceased, and he was the fee-simple owner of the land. There can be no contention that Lee A. Denson has from the deed of Bradley S. Johnson and wife, Nannie E. Johnson, a fee-simple title to this land. He could only convey *202 tbe land under item 6 to Lee A. Denson, under tbe power and authority given in item 6. Did be do tbis? We are of tbe opinion tbat be did. "We tbink tbe above excerpts from tbe deed show a clear intention. Tbe fact tbat be conveyed it as trustee shows tbat tbe power under item 6 was exercised. In fact, under item 6, be could only convey as trustee. In item 10 be could only convey as an individual. In tbe deed be distinctly recites in three places “Bradley S. Johnson, trustee under the will of Mrs. J ane Claudia J ohnson.” He also defined tbe land as “being part of tbe land devised to Bradley S. Johnson and Bradley S. Johnson, trustee,” etc. Any other construction would make these words surplusage, senseless and meaningless. Perry on Trusts, vol. 2 (6 ed.), part sec. 511c, lays down tbe well accepted rule: “Tbe donee of a power may execute it without expressly referring to it, or taking any notice of it, provided tbat it is apparent from tbe whole instrument tbat it was intended as an execution of tbe power. Tbe execution of tbe power, however, must show tbat it was intended to be such execution; for if it is uncertain whether tbe act was intended to be an execution of tbe power, it will not be construed as an execution. Tbe intention to execute a power will sufficiently appear,— (1) When there is some reference to tbe power in tbe instrument of execution; (2) where there is a reference to tbe property which is tbe subject-matter on which execution of tbe 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.” (Italics ours.) Mr. Justice Story, in Blagge v. Miles, 1 Story, 426, lays down tbe following rule: “Tbe main point is to arrive at tbe intention and object of tbe donee of tbe power in tbe instrument of execution, and tbat being once ascertained, effect is given to it accordingly. If tbe donee of tbe power intends to execute, and tbe mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make tbe execution valid and operative. I agree tbat tbe intention to execute tbe power must be apparent and clear, so tbat tbe transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all tbe circumstances, tben tbat doubt will prevent it from being deemed an execution of tbe power. All tbe authorities agree tbat it is not necessary tbat tbe intention to execute tbe power should appear by express terms or recitals in tbe instrument. It is sufficient tbat it should appear by words, acts or deeds demonstrating tbe intention.” Tbis position of Mr. Justice Story is followed by tbe Supreme Court of tbe United States, in Warner v. Conn. Mutual Life Ins. Co., 109 *203 U. S., 357, Matthews, J., speaking to tbe question; Willier et al. v. Cummings et al., 91 Neb., 571; Funk v. Eggleston, 92 Ill., 515. Ashe, J., in Taylor v. Eatman, 92 N. C., p. 607, says r “As a general rule, in executing a power, tbe deed or will should regularly refer to it expressly, and it is usually recited; yet it is not necessary to do tbis, if tbe act shows that tbe donee bad in view tbe subject of tbe power at tbe time. 2 Washburn on Real Property (4 ed.), 658.” Siler v. Ward,, 4 N. C., 161; Exum v. Baker, 118 N. C., 545; Kirkman v. Wadsworth, 137 N. C., 453; Carraway v. Moseley, 152 N. C., 351; Matthews v. Griffin, 187 N. C., 599. Brown, J., in Kadis v. Weil, 164 N. C., p. 87, speaking to tbe subject, says: “Tbe contention of tbe defendant that it was tbe duty of tbe plaintiff to see to tbe application of tbe proceeds derived from tbe sale to him, and see that tbe same was reinvested in real estate by tbe trustee, cannot be sustained. It was so held in England, but is not tbe law here as to a bona fide purchaser for value. Hauser v. Shore, 40 N. C., 357; Whitted v. Nash, 66 N. C., 590; Grimes v. Taft, 98 N. C., 198; Hunt v. Bank, 17 N. C., 60; 39 Cyc., pp. 378 and 379; A. & E. (2 ed.), vol. 28, pp. 1130 and 1131.” Tbe language in item 10 relieving tbe purchaser from liability to see to tbe application of tbe purchase money, construed with item 6, does not change tbe law that a bona fide purchaser for value is not required to see to tbe application of tbe purchase money when tbe sale was made under tbe power conferred in item 6. From tbe record, tbe judgment of tbe court below is Affirmed.