Drusadow v. Wilde

The opinion of the court was delivered, January 3d 1870, by Sharswo.od, J. — The first three assignments of error are all in substance one: that the court below erred in the rejection of the offer of the will of Susan Wilde. The relevancy and admissibility of this evidence depend upon the question whether Susan Wilde being a married woman had any power to make the disposition of the premises which she undertook to do by the instrument of writing in question. By indenture dated January 20th 1860, George W. Wilde and wife conveyed the property to Robert M. Parke, upon trusts expressed as follows: “ said Susan Wilde, wife of the said George Wilde is to take this lot in fee simple, for the sole and separate use of the said Susan Wilde, wife of the said George, her heirs and assigns for ever.” “And upon the further trust that the said Susan [172] Wilde, or such person as she shall appoint, shall take and receive the rents, issues and profits of the first-described lot for ever.” It will not be necessary to inquire whether where an estate is conveyed in trust for the separate use of a married woman, she can make a valid disposition of it by will under the 7th section of the Act of April 11th 1848, “ to secure the rights of married women:” (Pamph. L. 537): see Alexander v. Paxson, 11 Wright 12. We think that the deed of trust vests in her a general power of appointment within the rule laid down in Lancaster v. Dolan, 1 Rawle 231, and that the will in question was an effectual exercise of that power. As to the first point it is objected that the limitation of the power to the rents, issues and profits does not reach the corpus of the estate, and indicates an intention in the creator of the power that it should not extend beyond her life. But there is no construction of words older and better settled than that a grant or devise of the profits of land passes the land itself: “for what,” says Lord Coke, “is the land but the profits thereof? for thereby vesture, herbage, trees, mines and all whatever parcel of the land doth pass,” Co. Litt. 4, 6: Parker v. Plummer, Cro. Eliz. 190; Paramour v. Yardley, Plowd. 541; Doe d. Goldin v. Lakeman, 2 B. & Ad. 42; Johnson v. Arnold, 1 Ves. Sen. 171; Reed v. Reed, 9 Mass. 372; Anderson v. Greble, 1 Ashm. 138; Carlyle v. Cannon, 3 Rawle 489. Nor is there any reason to hold that this proves an intention to confine the exercise of the power to the enjoyment of the land during the life of Mrs. Wilde. Her appointee was to take as she was to take, “ for ever;” and the clause immediately following, which relates to the other lot, confines that to her natural life expressly. The estate in the trustee to feed the uses of the appointment was a fee, and it appears very evident that the intention of the grantor was that the interest both of her and her appointee was to be commensurate with it. The remaining point is that the will was an effectual execution of the power. It does not indeed refer to it in terms, nor is it necessary that it should. The subject over which the testatrix possessed the power is particularly described, and the authorities are clear and consistent in holding that where this is the case the power will be effectually exercised though the instrument' does not mention or refer to it as being in execution thereof. It is only •when the words of the will may be satisfied without supposing an intention to execute the power that it is no execution: 4 Kent Com. 335; Sugd. on Powers 284,1st Am. ed. Our own decisions are in entire accordance with these authorities: Allison v. Kurtz, 2 Watts 185; Coryell v. Dunton, 7 Barr 530; Keefer v. Schwartz, 11 Wright 503. The conclusion at which we have arrived that there was error in excluding the will, renders the other assignments of error, which [173] relate to the charge of the court on the question whether George W. Wilde, as the husband, was entitled to succeed to the estate of his wife in the absence of any known heirs or kindred under the intestate laws, entirely immaterial, and dispenses with any consideration of them upon this writ of error. Judgment reversed and venire facias de novo awarded.