Nabors v. Woolsey

ANDERSON, J. The will of Hawkins gave to bis daughter, Sarah E. Nabors, tbe Lon Martin place, to be held by her for her oato use during her life, and author [292] ized her to sell or dispose of same for reinvestment; the proceeds to he held and treated the same as the original property. (The reporter Avill set out so much of the will as relates to the Lon Martin land.) The said Sarah Avas also authorized to dispose of said legacy by will or devise, if she chose to do so; othenvise it shall descend to her children or heirs. The said Sarah took a life estate Avith the qualified right to sell the fee for reinvestment. She Avas also given the right to devise same. Her children or heirs Avere given an express remainder in the land, or, if sold, in the fruits of the sale, to be reinvested by the life tenant and trustee, and which said remainder could be defeated only by the life tenant exercising the right to devise same as given her by the will of the said HaAvkins. The remainder over being to the children or heirs of the life tenant, Mrs. Nabors would take an absolute fee under the rule in Shelley’s Case, but Avhich said rule is abolished and the remainder is preserved by section 3403 of the Code of 1907. Mrs. Nabors did not get a fee under the terms of section 3423 of the Code, for the reason that she was not given the absolute poAver of disposition, as the power to sell was accompanied with a trust. It is true she was given the poAver to devise the property, independent of the qualified right to sell the same; but this right to devise was only a special power of disposition or appointment, and, under all the authorities, does not have the effect of enlarging a life estate. — Weathers v. Patterson, 30 Ala. 406, and cases cited. Nor was the life estate enlarged by section 3424 and 3425 of the Code. Her estate was limited, and did not therefore fall within the influence of section 3424. On the other hand, an express remainder was limited upon her life estate, so as to keep it beyond the influence of section 3425. It is true that section 3426, among other things, makes a [293] general and beneficial power to devise an absolute power, within the meaning of the last two sections, to-wit, sections 3424 and 3425 but, as above demonstrated, the will in question does not come within the influence of said last two sections, and, as it coinés within the purview of section 3423, and the power to sell being accompanied with a trust, the right to devise is not enlarged to an absolute power under section 3426. These sections were borrowed by us from New York, and as they appear in the statutes of said state section 3426 applies to the last three preceding sections, but our lawmakers saw fit to confine it to the last two sections, thus purposely excluding section 3423 from the operation of section 3426, and which is an act of considerable significance. — See Cumming & Gilbert’s Laws of N. Y. vol. 3, p. 3301, 3302, §§ 129-132. If, therefore, the life estate was not enlarged, the sale could have been made only as authorized by the instrument, so as to cut off the remainder* and the right to devise could only be by a will, duly executed as required by law. — Section 3430 of the Code; Rutledge v. Cramton, 150 Ala. 275; 43 South. 822. The bill negatives a sale under the power of the will. Nor does it appear that the property has been devised in compliance Avith section 3430. In fact, it appears that Mrs. Nabors is still living, and she may yet devise the property, so as to cut off the remainder; but, be this as it may, the bill sets up a sale of the land in violation of the power given by the Hawkins will, and in breach of the trust imposed upon the trustee to reinvest, and such a sale cannot cut off the remainder as against a purchaser with notice of the violation of the trust. Whether' the defense of bona fide purchase should be set up by way of defense, or should be negatively set up by the bill, Ave need not decide, since the bill sets up [294] notice of a violation of the trust, and that the respondent got the land in payment of a debt due by French Nabors, and with knowledge of all the facts and circumstances, thus forestalling any protection-to the respondent under the terms of section 3411 of the Code. The case of Hood v. Bramlett, 105 Ala. 660, 17 South. 105, is not in conflict with the present holding, as the will there fell squarely under the influence of section 3425, as no remainder Avas limited on the estate of Louisa •Garrett, the donee of the poAver, as to the half given, and there Avas but an implied remainder or reversion; and said power was therefore made absolute by the terms of section 3426. Here there is an express remainder limited on the estate given Mrs. Nabors, and neither section 3425 nor 3426 applies to same. Nor did the fourth clause of the will considered in the case of Adams v. Mason, 85 Ala. 452, 5 South. 216, involve an express remainder limited upon the estate of the donee bf the power; and the court properly held that the' estate' devised could not be cut down to a life estate by an implied reversion or remainder. The Hawkins will gave Mrs. Nabors á life estate, and this she could dispose of without violating the trust, or Avithout impairing the remainder, which is preserved by •section 3406; but, as. the will of Hawkins gave her the right to sell the fee for certain purposes, there would be danger of a defeat of the remainder by a bona, fide purchaser,- under the terms of section 3411 of the Code. Therefore, Avhen an attempt is made to convey the whole •estate, and Avhich is done in breach of the trust, the remaindermen, or cestuis que trust, have the right to and should act upon a breach of said trust, so as to intercept the acquirement of their interest by a bona fide purchaser, and they need not wait until the termination of the life estate, or until it is definitely known that [295] tlieir remainder is defeated by a devise of the land by the life tenant. — Robinson v. Pierce, 118 Ala. 273, 24 South. 984, 45 L. R. A. 66, 72 Am. St. Rep. 160. The city court held that the Hawkins will gave Mrs. Nabors the absolute power of disposition, and that complainants’ bill was therefore ivithout equity, and in this we think there was error, and the bill contains equity, in so far as it seeks to remove as a cloud so much of the conveyance as purports to convey an absolute estate. The decree of the city court is reversed, and one is here rendered, overruling the respondent’s demurrers, and the cause is remanded. Eeversed, rendered and remanded. Dowdell, C. J., and Sayre and Somerville, JJ., concur. McClellan, J., concurs in the reversal. Simpson and Mayfield, JJ., dissent.