White v. Hicks

Sutherland, J. The question in this case is: Did Mrs. Bieben, by her will, exercise, or execute, the general power of appointment, given to her by the will of her father, over $50,000 of the $100,000 which he directed to be kept invested for her use, during her life ? If the question were a question of intention, on the will of Mrs. Bieben, and the evidence in the case, there could not be a doubt that her will should be deemed a due execution, of the power, and that the judgment of the special term should be affirmed. But the question in the case really is, as to the admissibility of certain evidence, to show that she intended by her will to execute the power. As to all the evidence as to what the testatrix said, at or about the time she executed her will, it is not claimed by the counsel for the plaintiffs that it was admissible, in any view of the case; and it clearly was not; for as to what she said, the will alone can speak. So words of the testatrix, except those in the will, could properly be proved. If the question in the case was as to the interpretation of - the will as a will disposing of the testatrix’s own property, only, there would not be any question in the case; for then — 87 — there could not be a doubt that all the evidence to show the situation of the testatrix at the time she made her will; that she made, it in extremis; and all the evidence relating to the property or fund disposed of, or claimed to have been disposed of, would have been admissible. It is a general rule of evidence, that for the purpose of construing and giving effect to the intended operation or effect of a written contract, the situation of the parties, and the situation or condition of the subject of the contract, at the time, and generally the circumstances under which the contract was made may be shown; not for the purpose of showing what the parties intended to say in the contract, but for the purpose of ascertaining the meaning of what they have said in the contract; not for the purpose of showing the intention intended to be expressed in the contract, but for the purpose of showing the expressed intention. This rule of evidence applies, with all its force, and to its full extent, in the interpretation of a will operating, or intended to operate, as a will simply, and not as the execution of a power. ( Wigram’s Extrinsic Ev. proposition 5, p. 65, 4th ed.) I have examined many of the cases referred to by the counsel, in the principal case, and many others, as to the law in England relating to the execution of powers by wills when the act 1 Vict. ch. 26, effecting so great a change, was passed; and my conclusions on that point, so far as it has been discussed by the counsel, and so far as it may be of any importance in this case, are as follows: 1st. If the party, claimed to have executed a power by will, had no power to make a will — that is, had no general testamentary power—if she was a married woman, for instance—that the will, or instrument so called, might be deemed an execution of the power, though it did not refer to the power, or to any power generally ; and though the subject of the power was not mentioned or referred to in it. (See Shelford v. Acland, 23 Beav. 10.) But as to this point there is considerable doubt, (See Lovell v. Knight, 3 Simons, 275; Lempriere v. Valpy, 5 id. — 88 — 108.) In many of the cases cited by the counsel for the plaintiff on this point, the subject of the power was real estate, and there was a general devise, and these cases do not apply. 2d. The language of the whole will, taken together, might give the will the effect of an appointment under the power. It was sufficient if it appeared, in any way, on the face of the will, that the testator did not consider himself as disposing of his own jiroperty, but as executing a power. (Hawkins on the construction of Wills, p. 24; Hunloke v. Gill, 1 R. & My. 515, there cited. Churchill v. Dibbin, 2 Lord Kenyon’s Rep. part 2, p. 69. Dillon v. Dillon, 1 Ball & B. 77. Doe v. Roake, 2 Bing. 497.) 3d. The will might be deemed an execution of the power, without referring to the power, or any power, if the subject of the power was mentioned or referred to. 4th. If the subject of the power was lands, or lands in a certain county, a general devise o'f all the testator’s real estate, or all his real estate in that county, was deemed an execution of the power, if the testator had no real estate of his own, or no real estate of his own in the county, though the will did not refer to the power, or in any. other way to the subject of the power; and though there was nothing on the face of the will to show that the testator did not consider himself as disposing of his own real estate. (Standen v. Standen, 2 Ves.jun. 589. Denn v. Roake, 6 Bing. 475.) 5th. But if the subject of the power was personal property, the rule .was that you could not look beyond the face of the will forjan intent to execute the power. (Molton v. Hutchinson, 1 Atk. 558. Andrews v. Emmet, 2 Brown’s Ch. 297. Nannock v. Horton, 7 Ves. 391. Sayer v. Sayer, Innes v. Sayer, 7 Hare, 27 Eng. Ch. 376. Sibley v. Perry, 7 Ves. 523. Grant v. Lyman, 4 Russ. 296. Webb v. Honner, 1 J. & Walk. 532. Jones v. Tucker, 2 Meriv. 533. Bradly v. Westcott, 13 Ves. 444.) The truth is-, these English cases, only a, few of which have — 89 — been referred to, did not put the execution of a power by a will on the ground or question of intention. By force of precedent, (and it may be said by the conservative force of precedent,) they settled and established a technical rule that a will to execute a power must have certain features on its face, irrespective of the intention. It was conceded, in many of the cases, that the operation of the rule was to defeat the intention; and hence the act of parliament. Mr. Sugden thus states the rule: “ Before the statute (1 Vict. ch. 26) it was firmly.settled, that a-mere general devise or bequest, however unlimited in terms, would not comprehend the subject of a power, unless it referred to the subject, or to the power itself, or generally to any power vesteji in the testator.” (Sugd. on Pow. 8th ed. 301, § 35.) Again he says, that before the statute the rule was universal, that where “ the power was 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 had in view the thing of which he had a power to, dispose.” (Id. 300, §§ 31, 32.) It is plain that this rule involved the exclusion of all evidence of extrinsic facts to show intention, when a will by which a power was claimed to have been executed did not, on its face, come within the rule. What was the use of receiving such evidence, if the will, on its face, was not within the rule P z-^-. It is of no importance, in this case, whether the rule befofe mentioned, that a general devise, where the subject, pf the power was real estate, might carry the subject of the'powef,, when the testator had no real estate of his own, was, or was considered to be, a qualification of, or an exception; to, the settled rule as stated by Mr. Sugden. But to show the shadowy distinctions to which this qualification of, or exception to, the general rule lead, compare Jones v. Curry, (1 Swanst. 66,) with Standen v. Standen, (2 Ves. jun. 589.) The most difficult cases to reconcile are the cases where the question was, whether the subject of the power was referred — 90 — to or mentioned in the will, within the rule. Compare Innes v. Sayer, (3 Man. & G. 606, and 7 Hare,) Lownds v. Lownds, (1 Y. & J. 445,) and Walker v. Mackie, (4 Russ. 76,) with Nannock v. Horton, (7 Ves. 391,) and Jones v. Tucker, (2 Meriv. 533.) If the property subject to the power was so mentioned or described in the will, or by the bequest, as to make the bequest specific, then the will might be held to execute the power, and then evidence of extrinsic facts as to the circumstances of the testator’s property might be received, to show that the property so mentioned, or described in the will, or specific bequest, was the subject of the power. (See cases last cited, and Innes v. Sayer, 7 Hare, and 3 Man. & G. before citecd.) So far as our decision of the question of evidence, in the principal case, can or ought to be controlled, or influenced, by the English rule or cases, it is sufficient to say, that it appears to have been perfectly settled, when the act 1 Viet, was passed, that when the subject of a general power of appointment was personal property, evidence of the state or circumstances of the testator’s personal property was not admissible, nor indeed of any extrinsic fact or circumstance to show that he intended by a general bequest to exercise his power of appointment. flow I think Mrs. Eieben had a general testamentary power, notwithstanding her coverture, under the married woman’s act of 1848, as amended in 1849; and if she had, as the will does not refer to any power, and as there is nothing on the face of the will to indicate that she did not consider herself as disposing of her own property, it is plain that, by the English cases and the English rule, the will was not an execution of the power, and could not be shown by evidence of any extrinsic fact or facts to have been intended to be an execution of the power, unless it can be said to mention or refer to some specific fund or property, out of which she intended the legacies to be paid. Though there are features — 91 — of the will which render it probable that the testatrix, in wording it, had in view a particular amount of property or money, I do not think it can be said that the will mentions, or refers to, any specific fund or property. If, then, the question of evidence, presented by the appeal, is to be decided by the English cases, and the English rule, we must reverse the judgment of the special term, and declare that not any of the evidence as to extrinsic facts was properly received. If the will had referred, in any way, to the $100,000 of which Mrs. Eieben had the use for life, possibly that might have been sufficient to let in evidence of extrinsic facts. But. considering that Motion v. Hutchinson, (1 Atk. 558,) is the only English case, prior to the commencement of our revolution, (Const. of N. Y., art. 1, § 17,) referred to, that is strictly in point, (that being the case of a general bequest;) that the English rule as to general bequests, and in certain other respects, has been abolished by statute; that the reason for the distinction between a general devise, and a general bequest executing a power, no longer exists: considering the American cases, Blagge v. Miles, (1 Story’s Rep. 445 to 450,) and the late case of Amory v. Meredith, (7 Allen’s Mass. Rep. 397;) and considering that it is not and never has been reasonable, that the will of a party having a general and absolute power to dispose of property should be defeated, because he treated the property, by the will, as his own; I am of the opinion that the evidence as to the circumstances or condition of the property or fund in the hands of Mrs. Eieben’s brothers; the evidence to show that her own savings or property was not sufficient to answer the special legacies; and indeed, that all the evidence of extrinsic facts, as distinguished from what the testatrix said, was properly received; and that the judgment of the special term should be affirmed, with costs to the respondents, to be paid by Henry W. Hicks. I do not see that the provision, 1 Rev. Stat. 737, § 126, or — 92 — the enactment of that provision, has any weight as an argument, on either side of the question. [New York General Term, November 7, 1864, Leonard, J. I am satisfied with the conclusion that the will should be held to be a valid execution of the power. Geo. G. Barnard, J. also concurred. Judgment affirmed. Leonard, Geo. G. Barnard and Sutherland, Justices.]