Summers v. Higley

Mr. Justice Carter delivered the opinion of the court: By the decree construing the will the chancellor held that “the said Anna M. Grim, upon the death of said James M. Summers, became vested of the title in fee simple in said lands, subject to the conditional limitations that in case of her death before any of the testator’s children had attained their majority, then such fee simple would be cut down to a life estate, and the remainder, at her death, would vest in said children,” but held also “that all of said children having attained their majority in the lifetime of said Anna M. Grim, the said Anna M.„Grim, by virtue of said will, became vested and is now vested with the fee simple absolute in said land, subject to said mortgage.” If this is the proper construction of the will, the plaintiff in error Martha A. Summers had no interest in the property and cannot be heard to question the correctness of the decree foreclosing the mortgage. But we cannot so construe the will. It is clear to our minds .that by the first provision of the will, which devises the property to the widow, the testator intended to devise,-and did devise, the property to her intrust for certain specified uses,—that is, for her own support and for the maintenance and education of their children named in the will. The fact that she is beneficiary as well as trustee does not defeat the trust. (1 Perry on Trusts, sec. 59.) The property is given to her to be used by her for those purposes. It seems to us the language is as plain as it would have been had it stated in express terms that the property was given to her in trust, and then had stated the uses to which it was to be devoted. Section 13 of the act concerning conveyances (Hurd’s Stat. 1899, p. 405,) provides that “every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.” While the provisions of the will do not contain any words of inheritance, still said Anna would, under the statute, have taken an estate in fee simple absolute in the property afterward mortgaged by her, if it did not appear by the will that a less estate had been devised to her. But it does appear that the property was devised to her upon certain trusts which are declared in the instrument. This is made clearer by the third paragraph of the will, which provides that in case of her death before any one of the children reaches his or her majority, whatever of the estate may remain when the youngest child, William Summers, shall reach twenty-one years of age, over and above the amount consumed in the maintenance and education of said children, is to be equally divided between them. Although the trustee mig'ht be dead, the trust would continue until the youngest child should reach his majority, and until that time he would have a beneficial interest in it for his maintenance and education. The will also provided that the property might be further diminished by payments out of it, to each child as he or she became of age, of such sums as the amount of the estate would, in the discretion of the one then appointed to execute the trust, enable him to make. But this makes it clearer that the testator intended that eventually the property should go to his children. We are of the opinion, also, that a trust is declared by the second paragraph in favor of Thomas J. Summers, the father of the testator. By this provision the testator declares, in effect, that it is his will that his wife shall bestow upon his father, from time to time, in case of his becoming so infirm by age or disease as to be nnable to support himself, such sums of money as in her discretion she shall deem necessary for his support. Such are the trusts declared by the will, and the property is to be used to carry them into effect. It is to be noted that no power of sale is given to the trustee nor power to mortgage the property for any purpose, and while, if it became necessary, in carrying out the provisions of the will, to sell the real estate, a court of equity would have the power to authorize the trustee to sell aud convey the fee, we are of the opinion the will conferred no power on the trustee to sell or to convey, by deed or mortgage. She was authorized to use the property for the purposes mentioned,—not to sell or mortgage it. She could reside upon it with her children, or rent it, or make any proper use of it. To mortgage it to raise money to establish or maintain her husband, Grim, in business, was wholly unauthorized, and the mortgage was without force, and should have been so declared. The contingency upon which the property was to be equally divided among the children when the youngest child should reach his majority, as provided in the third clause, never happened and cannot happen hereafter, inasmuch as that period has passed and the said Anna M. Grim is still alive. There is no other provision in the will disposing of the property, or what may be left of it after the termination' of the trust. The fee not having been devised except for the purposes of the trust, we are of the opinion that it descended to the testator’s heirs-at-law as intestate estate, subject to the trust, in the same manner it would have done had there been no will, and said James M. Summers had by deed conveyed the property to his wife in trust for the same uses. It is probable, from the terms of the will, that the testator believed that the complete execution and satisfaction of the trusts created would consume the estate. But be that as it may, it remains true that the fee was not otherwise devised than in trust for the uses mentioned. . It follows that Anna M. Grim had no title which she could convey, by mortgage or otherwise, for the benefit of her husband, Martin Grim, and that the court below erred in decreeing a foreclosure of the mortgage. The bill to foreclose should have been dismissed, and no reason appears from the record why the cross-bill to remove the mortgage as a cloud upon the cross-complainant’s title should not have been sustained. The decree is reversed and the cause is. remanded for further proceedings .in accordance with the views here expressed. Reversed and remanded.