Smith v. Jackman

Grant, J. (after stating the facts). What was the intention of the testator ? This is the first and paramount question in the construction of wills. If that intention can be derived from the four corners of the instrument, courts will enforce it, unless there is some insurmountable legal obstacle to prevent. We reach the same conclusion as did the circuit judge. It was the evident intention of Mr. Powlesland to provide a maintenance for his wife, and to place the fund absolutely at her disposal. Her wish, not her need, was the sole condition on which khe was entitled to receive the entire sum. She was entitled to a part or the whole as and when she chose. The moment that she demanded a part or the entire amount it was the legal duty of her daughter to pay it. Such provisions are not uncommon, and there is' no legal obstacle to their enforcement. The words ‘ ‘ give and bequeath ” import an absolute gift, to take effect upon the decease of the testator. Eldridge v. Eldridge, 9 Cush. 516. The second [195] ■clause makes clear Mr. Powlesland’s intention, for he expressly reserves this bequest to his wife from the amount bequeathed to his daughter, and wills and bequeaths to the latter only the “residue and remainder.” “When the gift is absolute, and time of payment only is postponed, the gift vests at once.” Bishop v. McClelland's Ex'rs, 1 L. R. A. 551 (44 N. J. Eq. 450), note, and authorities there cited. See, also, McCarty v. Fish, 87 Mich. 48; Rood v. Hovey, 50 Mich. 395. Payment was postponed to such time as the legatee saw fit to demand it. There is no legal obstacle to such a provision. Three objections are urged against the relief sought: 1. It is urged that the power to sell is a naked one, not coupled with an interest, was personal to her, and was revoked by her death. The intention of the testator is very clear. His will contemplated that his executrix, after the settlement of the estate, should turn the property, real and personal, over to his daughter. He sought to secure the payment of the bequest to his wife. He evidently understood the difficulty of securing her by a lien upon the personal property. He did not desire to leave her with the mere personal obligation of his daughter to pay. He therefore sought to make the amount a charge or lien upon the land devised. The power to enforce this lien was devised in language just as clear as that in which the bequest was made. It was not necessary to declare a lien eo nomine. It exists by necessary implication. It follows that the power was coupled with an interest. “Every power given in a will is considered, in a court of chancery, as a trust for the benefit of a person for whose use the power is made, and as a ■devise or bequest to that person.” 2 Washb. Real Prop. *323, •§ 27. ' “Where a power of attorney is part of a security for money, it is not revocable.” Walsh v. Whitcomb, 2 Esp. 565. The rule is thus stated in Bergen v. Bennett, 1 Caines, Cas. 1 (2 Am. Dec. 281): “A power simply collateral and without interest, or a naked power, is where to a mere stranger authority is [196] given of disposing of an interest in which he had not before, nor hath by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives, under the instrument creating the power, or otherwise, a present or future interest in the land, it is then a power relating to the land.” ■ As already stated, it became the legal duty of Mrs. Jackman to pay on demand. She could not avoid her legal obligation or destroy the lien by neglecting to pay during the life of her mother. The power was not revoked by her death, but survived to her executor. %. It is next urged that Mrs. Powlesland elected to take the interest, and therefore was not entitled to the principal. The reply to this is that, under the terms of the will, she might take the interest as long as she chose, and was empowered at any time to demand and receive the entire bequest. The reception of interest did not operate as a waiver of her right to the principal. Counsel contend that the legacy did not unconditionally vest, but only after she had exercised her choice. If this be' accepted as the correct construction, it does not help defendant, for the legatee had exercised her choice by demanding the entire legacy, which became vested when the choice was exercised. Godshalk v. Akey, 109 Mich. 350, is cited, but the will in that case gave no choice to the legatee to take any part of the principal unless “the income was not sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need more than the interest,” etc. We held that the [bequest was of a life estate only, coupled with the privilege of using the principal if necessary. What the rights of the parties would be if Mrs. Powlesland had contented herself with the interest, making no demand for the principal, we need not discuss. 3. It follows from what we have already said that chancery is the proper forum in which to enforce the lien by which the payment was secured. Decree affirmed, with costs. The other Justices concurred.