Tallent v. Fitzpatrick

OPINION. I. decisive question in this case is the effect of the terms of the will in granting estates to the devisees therein, BOND, J. wm- Power of Donee to Sell‘ (After stating the facts as above). — The and giving power of disposal to the life tenant. In clear and positive terms the testator made two devises of his property; first, the estate to his widow during the full term of her natural life; second, remainders in fee to his five children by name; third, the testator gave the widow power to sell and make valid conveyances of his real estate “at any time she may think best and to her. best interest. ’ ’ In the construction of such wills the rule is fixed, that the donee of the power can only exercise it in the precise form in which it is given. [2 Washburn on Real Property (5 Ed.), p. 707; Garland v. Smith, 164 Mo. l. c. 15; Dougherty v. Doughertv, 204 Mo. l. c. 234; Burnet v. Burnet, 244 Mo. l. c. 505.] _ The reason of this is that the remainder devised shall not be defeated except by the terms of the will creating it, for when a remainder is expressly devised in fee, and the testator goes farther and specifically points out how it may be cut off, any other method of extinguishing it would annul the will of its creator,' hence the necessity for confining the execution of such power to the particular mode and maimer provided by the donor. In the case of Burnet v. Burnet, supra, this doctrine is reaffirmed after a full review of the rulings in this State, and in consonance with the guiding motive of the law to make the will speak only the mind of its maker, whenever that can be lawfully carried out. Our conclusion is that by the language of the present [16] will, giving her a power to dispose of the property, the life tenant was restricted to a sale and conveyance in pursuance thereof in the proper and legal sense of the term, and that she had no power to defeat the remainders by any other form of alienation. II. „ to Sell: Gift, It only remains to see whether the two transactions, "whereby the defendants acquired deeds to the property of their father in exclusion of the right of their sisters to share in the remainder devised by the testator to all of his children, was within the legitimate exercise of the power given to their mother to sell the land. We think not. No part of the price recited in either deed was-paid by either grantee when the instruments were executed and delivered. Before making them the grantor took the will and consulted a Mr. Schnieder as to her authority, who seems to have told her that she could dispose of the property as she saw fit. Both of the defendants were present at this interview; when cross-examined as to the deeds then made, the defendant, Mrs. Fitzpatrick, testified, to-wit: “Q. These* deeds recite that you are to pay $1000 for your half of the lot; you were to pay $1000 apiece for it? A. Yes, sir. “Q. Asa matter of fact you never paid any money? A. No, sir. “Q. Never intended to pay any money? A. No,, sir. “Q. Did you ever present any claim in the probate court against your father’s estate for anything' that you claimed he owed you? A. No, sir; I would, not have done it. “Q. You lived with him in his house for eighteen years? A. Not right with him; lived adjoining him. [17] “Q. Do you know whether or not John Kaiser ever paid any money for his deed? A. Not to my knowledge. “Q. You know as a fact that he never did pay for his deed, don’t you? A. He never paid anything that I know of. . . . “Q. Was it discussed in your presence between your mother and Mr. Schnieder as to what she could do under this will with this property? A. Yes, she asked him while I was there if she could dispose of this property and he said she could do as she saw fit. “Q. Mr. Schnieder told her that? A. Yes, sir. “Q. Was your brother with you. at this time? A. Well, he went with us there, but I think he left to go to Mr. Sidenfaden’s. “Q. You and your brother accompanied your mother to Mr. Schnieder’s office? A. Yes, sir. “Q. Did anybody else go with your brother and mother? A. No, sir.” This witness also added that the only payment made by her was the surrender to her mother of a note given to her husband by her father for $300, and which had been many years overdue previous to her father’s death. The defendant, John Kaiser, on cross-examination as to the making of the deed to him and the visit to the office of Mr. Schnieder stated: “Q. Your mother and Mrs. Fitzpatrick went to Mr. Schnieder’s office? A. Yes, and he read it to us. “Q. You read in the will — heard read that it was your father’s wish that the remainder of this property, after his death, was to be equally divided among his children? A. She could dispose of it as she saw fit for her maintenance and support. “Q. Is that so? A. Yes, sir; that is the way I understood it anyway. [18] “Q. "Was there anything to the effect that she could give it away? A. She could give it away if she wanted to; that is the way I understood it. . . . “Q. You say these deeds were executed on the 30th? A. Yes, sir. “Q. Three days after the will was filed she gave you and your sister the entire property? A. I think it was the 30th; I think it was that date. “Q. You of your sister neither one paid a dollar to your mother for those deeds, at this time? A. No, sir. “Q. You say you don’t know what the value of the property was at the time? A, I don’t know what it was then or now. “Q. Haven’t any idea? A. No, sir. “Q. Why was $1000 written in the deed as a con-, sideration? . A. Well, I don’t know; possibly Mr. Schnieder told her to put that in; I don’t know.” He then added that he paid some expenses charged to the property for city improvements against it since his father’s death, and that he gave his mother $200 after his death which he supposed she used to pay bills, and that he paid his father’s funeral expenses and medical bills amounting to $150. It is evident that these transactions did not in any fair and just sense meet the requirements of a sale of the property which the widow was authorized to make under the will. Her authority was to sell, which implies that she should do so in fact and truth, not by fiction and pretense. Defíñition. The common law definition of a sale of personal property is “a transfer of the absolute or general property in a thing for a price in money paid or promised.” [Benj. on Sales (5 Ed.), p. 2; Stout v. Hardware Co. 131 Mo. App. l. c. 525.] “But if any other consideration than money be given, it is not a sale” though it may be an exchange or barter. “If no valuable consideration be given for the transfer, it is a gift, not a sale.” [Ibid, p. 3; [19] Black’s Law Dictionary.] A sale possesses the same elements whether .its subject-matter be goods or lands. By the use of the word “to sell” the testator gave his wife only the power implied in performing an act of sale or the transfer of title for a moneyed price. He did not.thereby clothe her with authority to convey for a different consideration or for no consideration, for neither of these acts would have been a sale according to the fixed meaning of that term. Now the transactions under review in this case, if not mere gifts from the widow to the defendants, certainly rested on no present or promised payment of money, hut only upon an alleged satisfaction of some vague and uncertain claims of the grantees against the estate of their deceased father. This was not sufficient to bring the deeds based on .such consideration within the scope of the power given the grantor under the will; for that instrument only empowers her to make a real, not a colorable, sale. Not having done this during her life, the remainders to the five children of the testator took effect at her death, and the present suit by one of them to avoid the deeds to defendants was well brought and correctly decided by the trial, court. The judgment is affirmed. Graves, J., concurs; Lamm and Woodson, JJ., concur in result for the reason stated in dissenting opinion by Lamm, J., in Griffin v. Nicholas, 224 Mo. l. c. 312.