Grayson v. Germania Bank

Evans, P. J. (After stating the foregoing facts.) Perhaps upon no subject of the law have there been employed so many legal refinements, or such technical disquisition, as in the con-struction of powers and their mode of execution. In the greatest number of instances which have come under our observation the courts have been concerned with the determination of the validity ■and execution of powers which have been created in wills. The cardinal principle of interpretation of wills is to give effect to the testator’s intention, where it can be ascertained from the will, and where such intention is not incompatible with established rules of law and equity. We have before us two wills: that of Mr. Martin, which gave to his wife the power of appointment by will of property devised to her for life, and that of his wife, as being in execution of that power. In reaching the ultimate points for decision, and in a consideration of the reasons which impel us to our conclusion, we shall keep constantly before us this fundamental principle of testamentary construction. The case before us may be said to rest in its main characteristics upon two questions: (1) Is the will of Mrs. Martin to be construed as an act — 473 — done in pursuance of the execution of the power given her by her husband in his will in relation to the status and title of the property after her death, which was devised to her for life? (2) Is her, will a good execution of the power ? 1. With respect to the first question, our own decisions go to the extent of holding, that, in the execution of a power, a direct . reference to the power is not necessary, and if it be apparent that the act of the donee of the power is not' fairly or reasonably susceptible of any other interpretation than as indicating an intention ■ to execute the power, such act will be construed to be an execution of the power. Terry v. Rodahan, 79 Ga. 286 (5 S. E. 38, 11 Am. St. R. 420); Middlebrooks v. Ferguson, 126 Ga. 232 (55 S. E. 34); Mahoney v. Manning, 133 Ga. 784 (66 S. E. 1082); Nort v. Healy, 136 Ga. 287 (71 S. E. 471). These cases rest the doctrine upon the argument that by doing a thing which, independently of the power, would be nugatory, the donee of the power evinces . an intention to execute the power. Thus in Middlebrooks v. Ferguson, supra, it was ruled that where the donee of a power of sale, who individually has no interest in its subject, executes, without ■ referring to the power or instrument creating it, a fee-simple deed to land covered by it, the deed is to be construed as an execution ■ of it. Mrs. Martin individually owned a plantation described in ■her.will as “Woodstock.” Her will purported to operate and only operated upon three items of property,' viz.: (1) stock of the Southwestern Bailroad Company, (-2) the plantation devised to her for life by her husband, and (3) Woodstock plantation, its crops, .farming implements, etc., thereon. The first two items of property were given to her for life, with power of appointment by will, and the third item was hers individually. She recognized the difference between the property in which she had only a power of appoint.ment, and that which she owned in fee simple, in the devise disposing of “Woodstock.” In explaining the liberality of her devise to her daughter Elise, the testatrix said that it was done “in recognition of the'many sacrifices made by the said Elise M. Jones for me, she having unselfishly devoted the best years of her life ministering to my comfort and happiness; and it is therefore my earnest desire that she possess and enjoy Woodstock Plantation . . as fully and completely as I have in my lifetime.” Now, she devised to her daughter Mrs. Bessie Cozart 300 shares of railroad stock, and — 474 — to her grandsons • Alfred and Samuel Marshall each 97 shares of railroad stock, and to her daughter Mrs. Elise M. Jones 200 shares of railroad stock, and to her grandsons Alfred and Samuel Marshall and Mrs. Elise M. Jones she devised the land which was given to her for life by her husband. Thus it will be seen that she was careful to state that her gratitude to Mrs. Jones was compensated for out of the testatrix’s individual property, and that she was not using the property which was devised to her by her husband in rewarding her daughter for her unselfish devotion of many years. We think the power conferred by Mrs. Martin- on her executors to sell any part of her estate to carry out her will is referable to the devise of her individual property. Mrs. Martin devised the property over which she was given a power of appointment to the persons to whom she was empowered to do so, under her husband’s will; her interest in this property would cease upon her death, and she could not devise it as her own property. Unless we consider her devise of the specific property, in which she had no interest after death, but with respect to which she did have a power of appointment, to such of the children and grandchildren of herself and husband as she might select, as done in pursuance of the execution of the power, then her will as to these items of property would be absolutely senseless and nugatory. Therefore we conclude that Mrs. Martin’s will, with respect to the property devised to her for life, with power of appointment under her husband’s will, was in pursuance of that power. 2. We come now to the question whether Mrs. Martin’s will was a good execution of the power. As a preliminary to its solution, it is well to consider the testamentary plan of Mr. Martin. His will discloses that he was a man of ample fortune, and his elaborate scheme of trusts, life-estates, and remainders evinces an unmistakable purpose to keep his property among his descendants almost if not quite to the limit of time permissible under the rule against perpetuities. He made to his children and representatives of children specific devises, with trusts, life-estates, and remainders. He intended equality among his children at the time of the making of his will, and expressly said so in the third item. He anticipated that his wife would survive him and that' circumstances might change after his death, and he gave to her the right to exercise an absolute and unrestrained discretion as to which of their children — 475 — and grandchildren should share in the property devised to the wife for life. In making the selection the wife was not given the power to change the trusts, terms, conditions, and limitations which he impressed on the property. If the wife executed the power conferred upon her, the persons selected by her took the property appointed to each upon the same terms, conditions, and limitations which he created in his will. If she failed to execute the power, then, upon the falling in of her life-estate, the property was to be divided among his children and the issue of deceased children, upon the terms, conditions, and limitations of his will. It would therefore seem to have been the testator’s intention to confer upon his wife a power of selecting from among his children, and the issue of deceased children, such of them as she deemed proper to share in the'remainder estate of the property devised to'her for life, and to name them and the proportions or amount each was to take in such property .by her last will; the tenure of their title to be as fixed in the testator’s will. Her power extended only to the nomination of certain persons from a class, and the division of the property among her appointees, who took it subject to the terms, conditions, and limitations imposed upon each appointed in the testator’s will. The quantity of interest to be taken by the appointee is expressly limited by the will of Mr. Martin, and Mrs. Martin was only authorized to divide the property, and appoint the several portions of it to the appointees. In such eases it has been considered that even at law, where the quantity of interest to be taken by the appointee is expressly limited by the instrument creating the power, and the donee is only authorized to appoint the lands over which the estate is to ride, an appointment by the donee of an interest exceeding that intended to be given to the appointee is tantamount to a regular exercise of the power of appointment. 2 Sugden on Powers, § 79. We are cited by the plaintiffs in error to the Canadian case of Scane v. Hartwick, 11 Upper Canada Q. B. 550, as maintaining a different rule. In that case the testator devised to his' wife all of his property “as long as she, my said wife, shall exist; at her decease the said property to be at her sole disposal, unto any one or other of my descendants, so as the said property and land shall be entailed in the family, from one generation to another.” The wife devised to a grandson in fee, and it was held that her devise — 476 — was an excessive execution of the power, and was void. This case differs from the one in hand in this important fact: there the power was to the donee to create an estate tail, which she might have done either as an estate tail general or special, male or female; the donor did not create any estate to pass to the appointee. But in the ease at bar the donor created the estate and -imposed the terms, conditions, and limitations thereon, and the donee was only given the power to apportion the estate in remainder, and appoint such of his children or issue of deceased children to the allotment of her selection. At common law the rule was very rigid as to the execution of powers, and the common-law courts rejected all attempted executions as void where the donee, being given the power to appoint a particular estate, appointed one greater than that authorized by the power. The strictness of the common-law rule was modified by the English equity courts about the middle of the ■eighteenth century. In the leading case of Alexander v. Alexander, 2 Yes. Sr. 640, the rule was announced, that where a person, purporting to execute a power, has done something outside the power, then, if the things are distinguishable, the execution within the power is good and the excess void; but if the boundaries between the excess and execution are not distinguishable, the execution will be void in toto. In that case the power was to appoint among ■children, and was exercised by appointment to children and grandchildren, and it was held that the appointment was good as to the former and bad as to the latter. Likewise, it was held that a power to charge a particular sum will be executed by a charge of a larger ■sum, and the excess only will be void. Parker v. Parker, Gilb. Eq. 168. The equitable rule in this regard obtains in this State, and finds support in the Civil Code, § 4583, which declares: “Accident or mistake in the execution of a power, or causing the defective execution of the power, will be remedied in equity.” As we have ■seen, the power granted to Mrs. Martin was not to create a particular estate to the donee’s appointees, but to apportion property ■and to nominate the persons from a designated class to take such •estates therein as the donor had himself created. In her will Mrs. Martin used language similar to that employed by her husband. With reference to the property in which she had only a life-estate with power of appointment, she said “I give, bequeath, and devise” to persons from the class from which her husband gave her the — 477 — power of appointment. Of course she could not technically devise property which was not hers, and we will not give the language such a technical meaning as to thwart her plain purpose of appointment. And any strained technical implication of an attempt to create a fee-simple estate will be- considered a harmless effort in excess of her power. We therefore conclude that Mrs. Martin executed the power given to her in her husband’s will. Judgment affirmed. All the Justices concur.