Baird v. Boucher

Cooper, J., delivered the opinion of the court. The word “ rent” in the will of M. W. Fulford was evidently written by clerical error for “ real.” The testator was disposing of his real and personal property, and the whole instrument demonstrates the fact that one word was by mistake written for the other. Noseitur a sociis. By the will, which was admitted to probate in the year 1850, the testator gave to his wife, Nancy Y. Fulford, a life estate in his real and personal property, “ to use said property for the support of her and the heirs of our body, namely, Siby F. Fulford, Lucy E. Fulford,Mary K. Fulford, Sallie G. Fulford, the now living heirs of our body, and at the death of said Nancy Y. all the then property, both real and personal, to be equally divided between the above named heirs, or as many of them as are still living at the death of said Nancy Y. Fulford. And should Nancy think best, at any time, to remove from where we now live, she is fully authorized to sell the land which I now reside upon.” In April, 1874, the appellees, Mary A. and Lucy B. Boucher, nee Mary A. and Lucy B. Ful-ford, bought from their sister, Siby S., then Mrs. Mixon, her interest in said land, and in May Mrs. Fulford, in consideration of the sum of sixteen hundred dollars, conveyed the land by deed, convejdng a fee simple title, to said Mary A. and Lucy B. There is no reference in the deed to the power of sale conferred by the will, nor any recital of the fact that Mrs. Ful-ford then thought it best to remove from the premises; nor is [329] there any evidence that she ever contemplated so doing, or ever after the conveyance, in fact, did so ; on the contrary, the evidence shows that after the conveyance, when not visiting her other children, she resided on the premises. The husband of one of the grantees, who was the only witness examined, testified that she remained on the premises until her death, but astheguestof his wife, and after the execution of the deed never claimed or exercised ownership over the land. Mrs. Fulford, by the will of her husband, had only a life estate in the land. By her conveyance she disposed of the fee simple. The rule is, that where one has both an estate in, and a power over, property, and does an act which may be referred either to the execution of .the power, or the exercise of his rights as owner, it will be presumed that the act is done by reason of his ownership ; but if a conveyance is made which cannot have full effect except by referring it to an execution of the power, though some estate would pass by reason of his ownership, yet because the conveyance can only have full effect by referring it to the power, this will be done. The illustration given by Sugden is that of one having a life estate inlands, and a power to lease for three lives. In such case, if a lease for the lives be made, and no reference is made to the power, it will, nevertheless, be held to be done by virtue of the power ; for though the lease would be good for the life of the lessor, by reason of his interest, still the lease being for a greater term can only have full effect as an execution of the power. 1 Sugden on Pow., 414; Andrews v. Brumfield, 32 Miss. 107; Yates v. Clarke, 56 Miss. 212. In this case Mrs. Fulford had only a life estate, while the deed purports to convey a fee simple. If, then, the conveyance be referred to the estate of the grantor it cannot have full effect, and, therefore, it must be intended as an execution of the power. But Mrs. Fulford did not have a general and unrestricted power over the estate of the remainder-men ; she was only authorized to sell it if, at any time, she should think it best to remove from the premises. We think' the evidence not only [330] fails to show the existence of the circumstances justifying the sale, but establishes that such contingency had not arisen. The widow had remained upon the premises for twenty-four years after the death of her husband, all her daughters had married, and one, or perhaps two of them, resided on the land. These facts, taken in connection with the relationship of the parties, the fact that it is shown by the record that only a few weeks before the execution of the deed the grantees therein had purchased from their sister, Mrs. Mixon, her interest in the property, the continued residence of Mrs. Ful-ford on the land after the sale, as the guest of the grantees, impel us to the conviction that the conveyance was not made in the bona fide exercise of the power conferred by the will, but that it was an attempt on the part of the parties thereto to exclude the complainant from the benefit of the devise under the will of her father, by a pretended exercise of the power. The complainant was entitled to the relief prayed. The decree is reversed, and the cause remanded for future proceedings in the cause in conformity with the views herein expressed.