Thompson v. Garwood

The opinion of the Court was delivered by Sergeant, J. It appears by the petition and answer, that Hannah C. Fisher was the niece of Henrietta Ware, and the latter, by her will, devised the real estate in question to trustees, in trust for the separate use of Hannah C. Fisher for life, with remainder to her child or children surviving her, or their children, taking per stirjoes. If, however, Hannah C. Fisher, died without leaving such child, &c., surviving her, or if living, they died in their minority, then the estate should go and she devised the same, to such person or persons, and for such estate and estates, and in such manner and form, as she, the said Hannah C. Fisher, by her last will, or *any writing, &c., intended as such, should nominate, direct and appoint — and for want of [304] such appointment, to Robert Knox Eisher, in fee simple. Hannah C. Fisher intermarried 'with Joseph S. Snowden, and died without leaving any child, or the issue of any. She made a will, and intending to execute the power, devised the premises to her executors in fee, in trust to permit and suffer her brother, Robert Knox Fisher, to receive and have for his own use, all the clear rent, income, and produce thereof for and during the term of his natural life; and at and from his decease, to convey the same to the children of the said Robert Knox Fisher, their heirs and assigns forever, in equal shares and proportions. At the time of making this will, and death of Mrs. Snowden, Robert Knox Fisher had two children, a daughter and a son, both since dead, at the respective ages of three and seven years. The prayer of the petition is, that the trustees, (new ones appointed in place of the former, who died,) may convey the legal estate to the petitioner, who is the alienee of Robert Knox Fisher and his wife. To this petition an answer has been filed; and the question is, whether the devise over by Mrs. Snowden, in execution of the power, after the termination of the estate for life of her brother' Robert Knox Fisher, conveyed a vested estate in remainder, solely to the children which he had living at the date of her will and her decease; or whether children that might happen to be born after the death of Mrs. Snowden, should not be let in. In the latter case, as he is living, there is a possibility of his yet having other children born; in which case the trust must continue for their benefit; in the former, it is contended on behalf of the petitioner, that the vested estate in fee in the two children, descended on the death of the survivor of them to their father, Robert Knox Fisher, and united with his life estate, so that he became tenant in fee simple thereof. Taking into view only the clause in the will of Mrs. Snowden on this subject, it would seem, that the devise was not limited to the children which Robert Knox Fisher had at her decease, but extended to the children he might afterwards have during the rest of his lifetime. The devise is of an estate for life in Robert Knox Fisher, and at and from Ms decease, to convey the same to the children of the said Robert Knox Fisher, and their heirs and assigns forever, in equal shares and proportions. There is no express limitation to the children then living, who may be supposed to have been known to Mrs. Snowden. In the absence of any such preference, it is a decisive circumstance, that the conveyance is not to be till, at and from his decease. That was marked out by the testator as the period when the distribution was to be made, and in the mean time, and during his life, all the income and profits were to go to the use of the [305] father, Robert *Knox Fisher. The case appears to fall within the rule settled by this Court in the case of Pemberton v. Parke, (5 Binn, 611). There the testator gave the bulk of his estate “ to his widow, during her life or widowhood, and to the children and grandchildren of his brother Israel Pemberton, to be equally divided among those of them who may be then living, two thousand pounds; and the word, then, was agreed to refer to the death of the widow. It was held, that until the death of the widow, the legacy did not vest, but was suspended, and was clearly contingent, as to such of the descendants as should survive the widow. And the rule is thus laid down by Mr. Justice Yeates. “ It is impossible to reconcile all the different decisions on this branch of the law. It would seem, however, that this general rule may be collected from the cases. When the devise or gift to the children is general, and not limited to a particular period, it is then confined to the death of the testator. Northey v. Burbage, (Prec. Ch. 470); Heathe v. Heathe, (2 Atk. 121); Horsley v. Chaloner, (2 Ves. 83); Isaac v. Isaac, (Amb. 348). But when such devise or gift is to one for life, or when the distribution is postponed to a future time, there, children born during the life, or before the time of distribution, are let in. Harding v. Glynn, (1 Atk. 470); Graves v. Boyle, (Ib. 509); Houghton v. Harrison, (2 Atk. 329); Ellison v. Airey, (1 Ves. 111).” But it is contended, that whatever may be the construction of this clause, as it stands alone, yet that a different intention is evinced in the first place in the will of Mrs. Ware, the donor of the power, and in the next place in the will of Mrs. Snowden, the donee. And first, as to the will of Mrs. Ware. I am not able to comprehend in what way any language in the will of Mrs. Ware in her distribution of other property by other clauses of her will, among children or other persons, by which she explicitly extends her bequests to children surviving or afterwards to be born can affect the present question. For it is to be observed, that this is a general power given by the will of Mrs. Ware to Mrs. Snowden, and not a particular or limited power. The estate is to go, in default of children, &e., of Mrs. Snowden, to such persons, and for such estate, and in such manner, as she should by will &c., appoint. She might limit and appoint it to go to any person or persons she pleased, though they were utter strangers to Mrs. Ware and to her, and that in fee, for life or lives, or for such other estates as she should choose to carve out. Had Mrs. Ware invested her with a power to appoint to such and such children, then her intent, as inferrible from the lanlauge of other portions of her will, might perhaps be resorted to \ for the purpose of ascertaining the extent of a power, in case of a doubt. But where she gives a general and unlimited power, which may or may not afterwards be exercised in favour of any body’s children, how can her description of the children who are to take undeii other devises or bequests be of any importance ? Or how *can it be, that a general power shall be in this cut down to a limited one ? For the law has established an important distinction between general and particular powers. By a general power is understood a right to appoint to whomsoever the donee pleases. By a particular power is meant, that the donee is restricted to some objects designated in the deed creating the power, as to his own children. A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, hut because it enables him to give the fee to whom he pleases. He has an absolute disposing power over the estate, and may bring it into the market, whenever his necessities or wishes may lead him to do so. Therefore whatever estate may he created by a man seised in fee, may equally be created under a general power of appointment: and the period for the commencement of limitations, in point of perpetuity, is the time of the execution of the power, not of the creation of it. 1 Sudg. Powers, 495. A power general in terms will not be cut down to a particular power, unless there is an apparent intent. Bristow v. Warde, (2 Ves. Jr., 336). There is no such intent apparent in the will of Mrs. Ware, as that Mrs. Snowden’s power should be limited in favour of particular children of Robert Knox Fisher, or indeed in favour of' any of his children. It is contended, that it is a rule, that the appointee"' must claim under the instrument creating the power, and that both the instrument creating, and the one executing the power must be read together. And that is true, so far as respects the question how the estate is created, but not as to what is created. Thus it is laid down by Lord Hardwicke, in the case of The Duke of Marlborough v. Lord Godolphin, (2 Ves. 61,) and other cases cited by the counsel for the petitioner, that the appointee takes in the same manner as if the power and instrument executing it were incorporated in one instrument. So it is in appointments to uses. If a feoffment be executed to such uses as the feoffer shall appoint by will, when the will is made, the cestui que use is in by the feoffment. But when it was attempted to push this rule to the extent, that the acts done in consequence of and by virtue of an authority and pursuant thereto, were the acts of the old proprietor, and even of that day when he, by virtue of his ownership, delegated that authority, Lord Hard [306] wicke overruled the attempt; and indeed it would seem to lead to consequences too paradoxical to be admitted. On the contrary, the rule is, that the construction of the instrument executing a general power is the same as if the donee had made a conveyance by deed or will. In the execution of powers, says Mr. Sugden, (1 Sugd. Pow. 556,) by deed or other act inter vivos, technical expressions are as necessary in the limitation of the estate as in feoffments or gifts at common law. Therefore if, under a power, the estate be appointed to A., and the deed express or no estate, *the appointee will take an estate for life And so in other case which may be put, the construction would be the same as upon a feoffment at common law. A different construction is not to be made on conveyances to uses from that which is put on common law conveyances ; the same rule of construction applies to both. 3 T. R. 765. Wills executed under powers receive the same construction as proper wills. In The Duke of Marlborough v. Lord Godolphin, (2 Ves. 61,) Lord Hardwicke said, “so if a power is given by a deed to appoint lands by will, and the person to whom the power is given makes a will, and gives the land to A., and to his issue, the law says, that though such appointee takes under the power, yet the execution of the power being by will, it shall receive the same construction as a devise of lands, viz. an estate tail.” So, if it had been to A. forever, that would have been an estate in fee. It was never doubted, but that the construction of the words should be exactly as if he took strictly and properly under the words of a will. And conformably to this opinion, in a later case of an execution of a power by will, Lord Hardwicke held, that although the will was not a proper will, yet that the words of it were to have the like construction as if it was a proper will: for otherwise there would be a strange confusion in the construction of writings, if they were to have one construction when proper wills, and another when improper. The words, therefore, are to receive the same liberal and beneficial construction, as the words in a proper will.' And he determined an informal limitation to be an estate tail, although it clearly could not have been ■ so construed, had it been contained in a deed. Southby v. Stonehouse, (2 Ves. 610). All these authorities, as well as the plain and obvious nature • of the case, seem to show, that this being a general power to Mrs. Snowden, her intention, as expressed in her will, is alone to be regarded, in determining the construction to be put on its execution by her will; and that other clauses in the- will of Mrs. Ware, the donor, not relating to the power, cannot affect that construction, as she could not possibly foresee how Mrs. Snow307 den might choose to dispose of the estate, or whether she would give it to any children at all, born or to be born, but left it to her to do as she pleased. Nor is it to be presumed, that Mrs. Snowden looked at Mrs. Ware’s other devises, or had any view to her wishes in her various dispositions or use of words, any more than an attorney in fact executing a power to sell lands, is to be supposed conversant of the deeds or instruments ^ executed between his principal and other parties. Nor am I able to discover any thing in the will of Mrs. Snow-den that goes to change or vary the disposition made according to the rules of law by the clauses in question. They relate to other estates, and other devisees, and whether she chose in relation to them to use the same, or different words, does not in the present *ease aid us in discovering the intention contended for. In one clause she selects a-daughter of Mrs. Euit, then living, whom, by name, she makes sole devisee, if she survived Mrs. Euit, but if she died, and her mother left lawful issue, then the estate was to be conveyed to them; in case she left none, then to the children of the testator’s brothers and sisters in equal shares. Another clause gives to John. Fisher, for life, in the same manner as is done in relation to the premises now in question. Another is to the children of Mrs. Hill. ■ These dispositions do not seem to elicit any thing that developes the intent of Mrs. Snowden as to the children of Robert Knox Fisher in the devise relating to them, so as to control its interpretation and legal effect; and it must therefore be construed by itself. According to that construction, it was á devise of a contingent remainder to all the children of Robert Knox Fisher, born, or to be born; and as he appears on these proceedings to be yet living, and therefore in contemplation of law may have children, the trust must remain for their benefit. Petition dismissed. Note. The bill in the case was dismissed without prejudice. It appeared afterwards that R. K. Fisher had died at sea or in foreign parts, before the hearing of the case. Cited by Counsel, 2 Watts & Sergeant, 432 ; 1 Casey, 250.