Tyson v. Tyson

Alvey, J., delivered the opinion of the Court. The mistake alleged in this ease appears with sufficient certainty to entitle the complainants to have it corrected. The proof is full and clear as to the design and purpose of the deed of the 12th of February, 1866, and that it was not intended to divest Mrs. Tyson of her disposing power over the property, conferred by the deed of the 6th of May, 1864. Rut the ground upon which relief was denied by the Court below was, that the object to be accomplished by the deed of the 12th of February, 1866, was not within the purview of the disposing power given by the deed of the 6th of May, 1864; and hence the bill was dismissed. In the opinion of the Court below, however, we do not concur. The power of disposal, given by the deed of the 6th of May, 1864, is full and complete, if exercised during the life of the present husband, and with his assent. The power is, “ to sell, mortgage, or otherwise dispose of, and to grant the said property and the proceeds to reinvest in such other estate and property as she may think proper.” The property is conveyed to Mrs. Tyson, and to her personal representatives and assigns, to be held as her separate estate, during the life of her present or future husband, and, if she survive, then with power to devise, and after her death, in case no sale or other disposition shall be made by the said Julia McH. Tyson, under the aforesaid powers, and in so far as no such disposition may have been made by her,” then to be held by her children. The deed conveying the estate to Mrs. Tyson makes no provision with reference to any powers or limitations to which the estate acquired by reinvestment shall be subject, and our construction of the language in reference to reinvesting the proceeds of sale is, that it is rather suggestive than imperative ; and that if she were to sell or otherwise dispose of the property, the legality of the execution of the power would not depend upon the reinvestment of the proceeds. [138] The language of the disposing power is exceedingly broad and comprehensive, and the construction which we place upon it is irresistible, when we consider the event upon which the property is limited over to the children of Mrs. Tyson, after her death, namely, “ in case no sale or other disposition shall be made by the said Julia McH. Tyson, under the aforesaid powers.” If it had been designed that the property, or its pi’oceeds, should have remained in settlement, why such a provision as this ? See 1 Sugd. on Pow., 522; 2 Sugd. on Pow., 429. (Decided 25th June, 1869.) We shall reverse the decree of the Court below, and remand the cause, that the proper decree may be passed giving the relief prayed by the bill. Under the circumstances of the case, the appellants must pay the costs. Decree reversed, and cause remanded, with costs to the appellees.