Wetherill v. Wetherill

The opinion of the Court was delivered, by Lewis, J. —The case of Birdsall v. Richards, just decided, was determined upon the principle that where the settlor has a qualified fee, and a power of appointment appendant to the estate, he may, at his election, pass the estate by an instrument which operates by the interest and not by the power. Ip. that case the interest remained with the holder of the power, and the residuary clause was held to pass that interest- without special reference to the power. In the case now before us, according to our construction of the deed of 15th October, 1834, Martha Wetherill had no interest in the remainder in fee, which is the subject of controversy in this action. In regard to that estate her power is not appendant, because the execution does not “ fall -within the compass of her estate,” which was but for life. It is simply a power in gross, because the execution “falls out of the compass of her estate.” If this view of the nature of her estate and authority be correct, she could do no act to divest the qualified fee of her children, except in pursuance of the power. In the execution of a power in gross, no terms, however comprehensive, although sufficient to pass every species of property, freehold or copyhold, real or personal, will execute a power, unless they demonstrate that the power was in contemplation, and that there was an intention to execute it: 2 Bing. 497, 504. By the deed of 1834, the whole legal estate is vested in George Harrison Wikoff in fee, and the equitable interest in Martha Wetherill for life, the remainder in fee to her children. The power to sell was vested in Wikoff, in whom the legal estate resides, and not in Mrs. Wetherill. It was lawful for him to sell “ at her [271] request” and “with her consent,” but her wishes were not imperative. The proceeds were to be received by him, and, if paid out under her direction, the purchasers are declared to be free from liability for a “non-application or a misapplication.” To construe this power as vesting the fee in her, would be to divest the estate conveyed to the children by a previous -clause in the deed, and to invert the rule for the construction of deeds, in cases of repugnancy; which is to give effect to the first clause, and not to the last. But an instrument ought to receive that construction which places its several provisions in harmony with each other, if the language will fairly admit of it. The whole deed must be taken into consideration, and not detached portions. Where there was an intention to vest an interest in Mrs. Wetherill, the deed contains apt words for the purpose, and expressly directs the proceeds to be paid into her hands “for her own separate use” or into the hands of such agents as she shall appoint by writing under “ her own hand.” This was the language used in creating her life estate. But no such words are used in directing the appropriation of the proceeds arising from the sale of the whole estate. There, the language used is indicative of an intention to grant nothing more than a power to exercise her judgment in the distribution of the proceeds, after sale, among the parties who were entitled to the property before. The provision which was designed to relieve the purchasers from liability for a non-application or a misapplication would be absurd, if applied to a payment made to the party entitled as owner, or under her direction. Other suggestions might be presented to show that there w7as no intention, in the creation of the power of sale, to divest the estate of the children, or to increase that granted to the mother. Having then but a naked power, so far as regards the particular estate in controversy, can her conveyance of the 12th February, 1840, operate upon that estate ? Three classes of cases have been held to be sufficient demonstrations of an intention to execute a power: — 1st. Where there has been some reference to the power in the instrument of execution. 2d. Where there has been a reference to the property which was the subject on which it -was to be executed. 3d. Where the instrument of execution would have no operation whatever, except as an execution of the power. These cases have been determined upon the application of these rules of intention. Lord Chief Justice Best, in reference to this question, remarked, in Roake v. Derire, 4 Bligh N. S. 22, that “ rules with respect to evidence of intention, are bad rules, and he trusted he should live to see them no longer binding on the judges.” But even according to these rules of intention, there is nothing in the deed of 1840 which evinces an intention to execute the power. It cannot be said that this deed would he inoperative, except as an execution of the power, because the will of her husband gave both [272] an estate and a power coupled with an interest upon which tho deed may operate. She ha.d also a life estate under the deed of 1834, upon which it operated, and both these estates are referred to in the deed of 1840, the one by a reference to the estate acquired under the will, and the other by reference to her interests “ otherwise” acquired. The words in the preliminary part of the deed, in which she proposes to act “by virtue of her estates, interests, and powers,” may be construed to refer to the estates which were her own, and to the powers coupled with an interest which she held under the will, and not to the estate of her children ; and these words must be so construed, when taken in connection with the granting clauses of the deed, which are clearly and expressly confined to her own estates and interests, and do not purport to pass the vested estates of others. There is no reference to the estate of the children, or to the particular property in dispute; and we have already seen that there is no reference to the instrument creating the power. But the rule of construction in these cases, which involves all others, is, that the intention to execute the power must be so clearly manifested in the act of execution, that it is impossible to impute any other: Andrews v. Emmott, 2 Brown’s Ch. Rep. 297; Nowell v. Roake, 2 Bingh. 497. And we do not see how it is possible to impute to Mrs. Wetherill an intention to disturb a settlement made in favor of her children, by herself and her husband, and which, by the terms of that settlement, was not to be disturbed, except by Wikoff, the trustee, upon her request. If the intention was to execute the power, her course was to make the request, in pursuance of the terms and restrictions under which it was created. To construe the deed of Mrs. Wetherill of 1840, which purported to act upon her own estates alone, as amounting to a request obligatory upon the conscience of Wikoff, to hold that he ought to have sold by reason of such a constructive request, and to make this structure the foundation for the presumption that he has sold, and has thus parted with the legal estate and divested the equitable interests of the children, would be utterly indefensible, and contrary to the clearly expressed intention of the parties to the deeds of 1834 and 1840. The judgment of the Court below was correct, and is to be affirmed. Judgment affirmed.