Atkinson v. Dowling

The opinion of the court was delivered by Mr. Justice McIver. Angus Patterson died many years ago, leaving a will whereby he disposed of his estate, both real and personal, as follows ; after certain pecuniary legacies, amongst which was one -to his grandson, Angus P. Nott, of five thousand dollars, which should be .a charge upon his.entire real estate, he gave his real estate to his wife and three sons, Edward, Angus, andJabez; “that is to say, one fourth part thereof to my wife during her life, and the other three-fourths parts unto my sons in perpetuity. On the death of my wife, I give, devise, and bequeath all the estate which she will have at the time of her death, or be entitled to under this my last will and testament, unto such of my children and grandchildren in such parts, parcels, and proportions, and upon such trusts, limitations, and conditions as my wife, by her last will and testament or other writing executed in the presence of three or more witnesses, shall direct and appoint; but if my wife shall fail or omit to execute a last will or testament or other writing upon her death,” he bequeathed the personal estate to all his children, and devised the real estate to which his wife might then be entitled under the will, to his three sons. The testator in his will expressed the desire that so much of the income of his estate, over and above the support and education of his children, as might be necessary, at least to the — 420 — extent of fifteen hundred dollars, should be invested as a fund for the payment of debts, legacies, and such other amounts as the estate might be justly liable for. It turned out, however, that nothing was saved from the annual income over and above the expense of maintaining the family and the education of the children, up to the time of the commencement of the war between the States, shortly before which the personal property was divided amongst the parties entitled thereto. Some time in the year 1860, with a view to provide for the payment of the legacy of $5,000 to the grandson, Angus P. Nott, which was not payable until he attained the age of twenty-one years, and which, as we have seen, was a charge upon the entire real estate, an arrangement was made between the three sons, Edward, Angus, and Jabez, and their mother, Mrs. Hannah Patterson, the widow of the testator, whereby the former, in consideration of the covenant hereinafter stated, conveyed to the latter the lots of land in the town of Barnwell, which are the subject matter of the present controversy, and Mrs. Hannah Patterson executed her covenant to them to assume the sole responsibility for the payment of the said legacy when it should become payable. And with a view to raise the funds necessary to make such payment, Mrs. Hannah Patterson bargained and sold the said lots of land to one James Patterson for the sum of five thousand dollars, taking his bond and mortgage to secure the payment of the purchase money. The title to said premises was made in the following way: Mrs. Patterson first executed an instrument in writing, in which, after reciting the said power of appointment, and declaring her intention to exercise the same in the manner and form prescribed by the will of her testator, she directed and appointed the remainder in her undivided one-fourth life interest in the said'premises, after the termination of her life estate, to the said Jabez Patterson, his heirs and assigns, with full covenants of warranty, to which paper, however, there appears to be only two subscribing witnesses; and on the same day she and the said Jabez joined in a deed to the said James Patterson for the said premises, conveying the same to him in fee, with full covenants of warranty. James Patterson having failed to pay in full- the amount — 421 — due on his said bond and mortgage, the premises were sold under foreclosure proceedings, instituted about the time when the legacy to Nott became payable, and bought by Mrs. Hannah Patterson, who subsequently sold the same to certain trustees of a joint stock company, who sold to the defendant, J. C. Dowling. It is conceded that the legacy to Angus P. Nott was paid in full by Mrs. Hannah Patterson out of the proceeds of the sales above mentioned. Mrs. Hannah Patterson died in 1889, leaving a will, in which, after referring to the power of appointment conferred upon her by the will of her husband, she makes the following disposition: “I give, devise, and bequeath all my estate, including that which I have the power to dispose of, or will, under the will of my husband, and all which I have acquired, real, personal, and mixed, and now owned by me, or that I may hereafter acquire and own at the date of my death, to my four daughters, Isabel C. Aldrich, Lucretia Atkinson, Marion Trotti, and Julia May, share and share alike.” Three of these daughters, the plaintiffs herein, bring this action for partition of the lots of land above referred to — the fourth daughter, Mrs. Aldrich, declining to join as a plaintiff in this action, and for that reason being made a party defendant. Their claim is based upon the ground that Mrs. Hannah Patterson having only a life estate in the one undivided fourth part of the premises, with a power of appointment of the remainder, after the termination of her life estate, and having exercised such power by her will duly executed in favor of her four daughters, they are therefore now, after the termination of Mrs. Patterson’s life estate, entitled to the undivided fourth part of said premises, to be divided amongst them share and share alike. Of course, this proceeds upon the theory that the attempted exercise of the power of appoihtment by Mrs. Patterson in favor of her son Jabez was not a valid exercise of the power, because the paper by which it was attempted was not executed in the presence of three witnesses, as required by the terms of the instrument creating the power; and this seems to be conceded by respondent. We may remark, however, in passing, that the will of Angus Patterson does not require that the power shall be exercised by — 422 — will or by an instrument in writing in the presence of three subscribing witnesses, but the language is: “By her last will and testament or other writing executed in the presence of three or more witnesses.” Now, if this language could be construed as requiring the power to be .exercised by will only, then it would follow that three subscribing witnesses would be necessary, for the statute requires that such a paper should be so executed. But can the language be so construed ? The words “or other writing” would seem to imply the contrary. If so, then the witnesses required need not necessarily be subscribing witnesses, for the testator has not said so, and the law would not so imply, if the donee of the power saw fit to exercise it by some other writing than a will. It is very manifest from the terms of the paper in which Mrs. Patterson undertook to exercise her power of appointment in favor of her son Jabez (a copy of which is set out in the “Case”), that she fully intended to make a valid exercise of her power in strict conformity to the directions of the donor of the power; for, after reciting the terms of her husband’s will creating the power, she declares that by virtue of the power of appointment thus conferred she does, “by this writing executed in the presence of three witnesses, direct, limit, and appoint,” &c. This paper, then, containing in itself the evidence that it was executed in the presence of the requisite number of witnesses, might possibly be regarded as a valid execution of the power, even though there appears to be only two subscribing witnesses to the paper. Although this would seem to be a very rigid and narrow view, yet when we find that eminent jurist, Kent, in the 4th volume of his Commentaries, at pages 324-5, saying: “It is the plain and settled rule that the conditions annexed to the exercise of the power must be strictly complied with, however unessential they might have been, if no such precise directions had been given. They are incapable of admitting any equivalent or substitution, for the person who creates the power has the undoubted right to create what checks he pleases to impose to guard against a tendency to abuse. The courts have been uniformly and severely exact upon this point. * * * When there are several modes of executing a power, and no directions are given, the donee may select his mode, and the courts seldom require any — 423 — formalities in the execution of the power beyond those required by the strict letter of the power” (italics ours); and when we find the same author speaking in the next paragraph of “the excessive and scrupulous strictness required,” especially with respect to the attestation of instruments of appointment, *&c., a Court of Equity might be warranted in adopting an extremely literal construction of. the language used by the donor of a power, in order to carry into effect the manifest intention of the parties and to subserve the ends of justice. But waiving this, as the point was not made or argued, we will proceed to consider the case upon the assumption that the paper just considered was not a valid execution of the power. It will be necessary, then, to inquire, first, what was the nature of the power conferred upon Mrs. Patterson by the will of her husband. Without going into any elaborate dissertation upon the nature of powers, or the several classes into which they have been arranged by the various law writers upon the subject, it is sufficient for us to say that we think the power here in question falls into the class designated in the books as a power “collateral or in gross” — a somewhat singular designation, it is true. In Sugden on Powers, 46, a power of that class is defined to be a power “given to a person * * to whom an estate is given by the deed, but which enables him to create such estates only as will not attach on the interest limited to him,” and one of the illustrations given is “a power to a tenant for life to appoint the estate after his death amongst his children,” and the same definition and illustration are substantially adopted in 4 Kent Com., 311. It is quite clear that the power here in question comes precisely up to this definition, for by the will of Angus Patterson — the instrument creating the power — an estate is given to Mrs. Patterson for her life, accompanied with a power to create other estates, which would not attach on the interest limited to her, or, as Kent expresses it, estates independent of her own ; and it falls precisely under the illustration, for she is made a tenant for life, with power to appoint the remainder after the termination of her life estate amongst such of her children and grandchildren as she might think proper. Such a pow'er can unquestionably, as a — 424 — general rule, be released or extinguished by the act of the donee. Sugd. Pow., 73. But where such a power is coupled with a trust, we suppose it would be otherwise. Thus where an estate for life is given by will to one with power to appoint the remainder after the termination of his life estate amongst the children, and there is no limitation over upon the failure to exercise the power, there a trust will be implied in favor of the ■ children, and the court will make the appointment amongst the children equally. But where there is a limitation over, upon the failure to exercise the power, no such trust can be implied, for the reason that it would defeat the intention of the testator. Where there is no limitation over, the power given to the life tenant to appoint the remainder amongst the children of such life tenant, is regarded as expressive of an intention on the part of the testator that such remainder should go to the children of the donee of the power in such shares as he might see fit to designate, but in the absence of any such designation by a failure to exercise the power, the intention of the testator that the children should have the remainder would be respected and the same would be equally divided amongst them. Thus in Withers v. Yeadon (1 Rich. Eq., at page 331), it is said: “When the testator gave his son a power to appoint among his grandchildren as he might choose, he in effect signified his wish that some of his grandchildren should have the benefit of his property, it being indifferent to him, though possibly not indifferent to his son, which. The substance of the power then was to enable his son to make an inequality among persons all standing in equal favor with the testator; in plain terms, to enable him to disappoint, to some extent, persons to whom the testator would, but from motives of deference to his son, have made fin equal appointment. The cases show that, under such circumstances, when the power given is not executed, the court will return to the forefather, and conform the bounty to the original state of his affections.’' But where there is a limitation over, upon the failure to exercise the power, there is no occasion for or propriety in resorting to inference as to the intentions of the testator; for he has declared his intention in such event in — 425 — explicit terms, and to imply a trust in such a case would defeat his declared intention. There being a valid limitation over in this case, it is clear there was no implied trust coupled with the power. Mrs. Patterson was under no obligation to exercise the power, but might, if she saw fit, fail or refuse to do so. The testator manifestly contemplated the event of her failing to exercise the power, and specially declared what should be the disposition of the remainder in such event, and hence there was no ground upon which a trust could be implied. If, then, the power in this case was of such a character as that it could be released or extinguished by the act of the donee of the power, the next question is, whether it was in fact released or extinguished. We know of no law which requires that such a release should be evidenced by any particular form of writing. Any evidence, therefore, which satisfactorily proves the fact is sufficient. We cannot doubt that the evidence in this case is amply sufficient to show that Mrs. Patterson did intend to release and did in fact release and extinguish her power of appointment, so far as the lots here in question are concerned. Any other view would, it seems to us, necessarily involve the idea that she intended to commit a fraud — an idea which cannot for a moment be entertained. It is admitted in the “Case” that the sale of these lots was made' with a view to raise the funds necessary to pay the Nott legacy, for which Mrs. Patterson had assumed the sole responsibility, in consideration of a conveyance to her by her sons of their interests in remainder in these lots, and that the proceeds of such sale were applied to that purpose, thereby relieving the balance of the real estate from the burden of that charge. She joined in conveying the absolute fee to James Patterson, with full covenants of warranty, and, to say nothing of the paper by} which she undertook to exercise her power of appointment in/ favor of her son Jabez, which was manifestly designed solely for) the purpose of perfecting the title to the lots, we do not see how she could more clearly have expressed her intention to release her power of appointment, so far as these lots were concerned; or how she could more effectually have extinguished such power. Indeed, but for the fact that the weight of English authority (for there seems to be none in this State upon this point) is said — 426 — to be the other way, we would be inclined to hold that when the ¡remaindermen in fee conveyed to her their interests in these lots, 'she then holding the life estate, she became the absolute owner in fee, and her power of appointment as to the remainder, not being coupled with any trust, was merged in her general and absolute power over the estate by virtue of her ownership of the fee. But as it is not' necessary to the decision of this case, we will not now undertake to decide the point. It is contended, however, that even if Mrs. Patterson had the right to release her power of appointment as a whole, she could hot release as to a part and retain the balance. When one is invested with a power to appoint the disposition of several distinct pieces of property, we do not see why the donee of the power may not exercise it as to one of the pieces and omit to exercise it as to the others. For example, if there had never been any sale of the lots in question, we see no reason why Mrs. Patterson could not have appointed the same to the use of one or more of her daughters and omitted to make any appointment as to the 1,000 acres, the balance of the real estate, or why she may not have appointed these lots to the use of two of her daughters, and have appointed the 1,000 acres to the use of her other two. Upon the same principle, we see no reason why she could not release her power to appoint as to one of these pieces of property and exercise it as to the other. We agree, therefore, with the Circuit Judge, that Mrs. Patterson’s will, though expressed in broad terms, must be construed as expressive of an intent on her part to exercise her power of appointment only over that portion of the property over which she retained the power, she knowing, and the public records showing to the world, that she had previously relinquished her power to appoint as to the lots here in controversy. The judgment of this court is, that the judgment of the Circuit Court be affirmed.