McCreary v. Bomberger

Opinion by Mb. Chief Justice Paxson, The learned judge below instructed the jury to find a verdict for the plaintiff subject to the reserved question whether there was any evidence in the case to sustain such verdict. Subsequently he entered judgment for the defendant non obstante veredicto. The learned judge was of the opinion that Sarah Bomberger took but a life estate in the land in question under the will of her husband, Lewis Bomberger. The will, so far as it applies to the present case, is as follows: “ I give, devise, and bequeath to my beloved wife, Sarah Bomberger, my house and lot in which I now reside, and all the household furniture and other items belonging to me not herein particularly mentioned; to have and to hold the said messuage and appurtenances and goods and chattels for and during her natural life; and at the death of my said wife all the prop [328] erty hereby devised and bequeathed to her as aforesaid, or so much thereof as may remain unexpended, I give and devise unto my son Michael Bomberger, in trust for his wife, Ann Bomberger, and their heirs; and further, if at any time it should be deemed advantageous to dispose of said house and lot, my said executrix, or, in the event of her death, the said aforenamed trustee is hereby authorized and empowered to sell and dispose of the same, the proceeds to be reinvested in, or secured by other real estate subject to the same conditions.” The said Sarah Bomberger was made executrix of the will. We need not discuss the extent of her interest in the real estate, for, conceding it to be but a life interest, it by no means follows that the mortgage did not bind the remainder. It will be noticed that the will gives her an absolute power of sale subject to the provision that the proceeds are to be reinvested in or secured by other real estate. It is familiar law in this state that an absolute and unrestricted power to sell includes a power to mortgage. It was said by Justice Sharswood in Zane v. Kennedy, 73 Pa., at page 192: “We cannot regard this as an open question. It was expressly decided in Lancaster v. Dolan, 1 Rawle, 231, that a power to sell does include a power to mortgage, which is a conditional sale.” We need not multiply authorities upon so plain a proposition. It was contended, however, that inasmuch as Mrs. Bomberger did not execute the mortgage in her name as executrix, but merely in her individual capacity, that it did not bind the estate in remainder. The fact that she sealed the mortgage personally and not as executrix will not prevent its execution being referred to the power of sale, if that is necessary to carry out the intent of the parties. It is the intention of the parties that governs the construction of the instrument: Hay v. Mayer, 8 Watts, 203. The distinction settled by the decisions appears to be this: When a donee of a power to sell land possesses also an interest in the subject of the power, a conveyance by him without actual reference to the power will not be deemed an execution of it, except there be evidence of an intention to execute, or, at least, in the face of evidence disproving such an intention: Jones v. Wood, 16 Pa. 25. We think there is abundance of evidence that Mrs. Bomberger intended to execute the power. It is true, there is no [329] reference to it in the mortgage, and if it were an unbending rule that such a reference must appear upon the face of the papers, the defendant’s position would be unanswerable. When all the circumstances surrounding the transaction are considered, we do not think it can be sustained. It must not be forgotten that the lumber for which the inortgage was given was used in the construction of a house upon the premises devised to her by her husband. This was not a literal compliance with the will, but it was a substantial one, and one of which the remaindermen have no cause to complain. She was authorized to sell the property and invest it in other real estate. Instead of doing so she built another house upon it and executed this mortgage to enable her to do so. She thus increased the value of the estate in remainder to that extent. The further fact that the trustee joined in the execution of the mortgage is also a pregnant circumstance to show the intention of the parties. He could have joined for no other purpose than to bind the estate of those in remainder. If Mrs. Bomberger had intended to bind only her life estate the joinder of the trustee was wholly unnecessary. Nothing that he could do could bind the estate of the widow. In this view it is unnecessary to discuss the question how far the trustee was authorized to sell or mortgage the property during the lifetime of Sarah Bomberger. She had the right to mortgage it and the action of the trustee is important only as throwing light upon the intention of the parties. The judgment is reversed, and it is now ordered that judgment be entered for the plaintiff upon the verdict.