Yates v. Clark

Campbell, J., delivered the opinion of the court. The will of Clark made his widow the donee of a power to hold, use, and employ all of his property, real and personal, for her own use and the use of their children, and to dispose of it, in her discretion, for their mutual advantage. As she was made the sole judge of “their mutual advantage,” her power to dispose of the property was unlimited. Her power to hold the property or to dispose of it was not affected by her marriage, after Clark’s death. The power was vested in her as an individual, and not as executrix; but if it was an incident to her office as executrix, her subsequent mar [216] l’iage' did not per se revoke it. The failure of a husband, who married an executrix, to give bond, as required by Rev. Code 1857, p. 435, art. 50, did not revoke or suspend her power as executrix. It was but a cause for removal; and until the exercise by the proper court of its power of removal for this cause, her power as executrix remained in full force. Willard on Exrs. 239 ; Woodruff v. Cox, 2 Bradf. 153. No order of court was necessary to enable the donee of the power of disposition to sell the property. The deeds made by the donee of the power were an execution of it. It is always a question of intention whether or not an instrument is an execution of a power. It is not necessary to refer to the power, if the act shows that the donee had in view the subject of the power, and intended to execute it. 4 Kent’s Comm., marg. p. 335; 33 N. Y. 383; 2 Story’s Eq. Jur., sect. 1062 a; 1 Sugden on Powers, 419, sect. 34; id. 468, top p., art. 15 et seq. It is true that where the donee of a power has an interest in the subject of the power, and makes a conveyance of it, without any indication of a purpose to execute the power, the conveyance will be deemed to operate only on his own interest, and not to be an execution of the power; because it is assumed that one intending to execute a power will, in some way, indicate it. If the words of the conveyance cannot be satisfied without supposing an intention to execute the power, it will be referred to the power, on the supposition that the party executing it purposed doing an effective act. White et al. v. Hicks et al., 33 N. Y. 383, and authorities there cited. Tried by these rules, the deeds in this case were an execution of the power conferred by Clark’s will upon his wife. In the beginning she describes herself as “formerly Bettie L. Clark, and wife of Robert A. Clark, deceased, and executrix of the last will and testament of said Robert A. Clark,” as the grantor. Each deed conveys .a fee, which she did not have in her own right, and which she could convey only by virtue of [217] said will, and each deed contains a covenant of warranty of the title conveyed. It is manifest that it was intended to execute the power conferred by the will; and, while it would have been better to have made express: reference to the power conferred by the will, the deeds are sufficient as written. Decree affirmed.