Blount v. Walker

9 S.E. 804, 31 S.C. 13, 1889 S.C. LEXIS 19

• Court: Supreme Court of South Carolina
• Decided: April 15, 1889
• Status: Published

Opinions

The opinion of the court w'as delivered by

Mr. Justice McIver.

The fundamental question in the case, as it seems to me, is, what estate did the trustee take under the will of Mrs. Harris ? If he took an estate in fee, then there can be no intestacy, for the testatrix devises her whole estate to the trustee and there was no room for any intestacy. If, however, the trustee took an estate only for the life of Mrs. Blount, then, as the ulterior limitations after the death of the life tenant have failed by reason of her dying without issue, and without executing the power of appointment, there is a case of intestacy, and the estate, subject to the life interest of Mrs. Blount, descended immediately upon the death of the testatrix to her heirs, and as Mrs. Blount was then her sole heir, became vested in her, and the personal property passed under her will, while the real estate goes to her heirs; her will being sufficient to pass personal property, but insufficient to pass real estate.

I think that under a proper construction of the will of Mrs. Harris the trustee took a fee. There can be no doubt that the testatrix intended to dispose of her entire estate, and did not intend to die intestate as to any portion thereof. This appears from the terms she has used, for she gives to the trustee uall the estate, real and personal, of which I may die seized, possessed, and entitled to.” That this language imports an intention to dispose of the fee, is shown by the case of Qanedy v. Jones, 19 S. C., 300, 301, and the authorities there cited. Next, it will be observed that she uses technical terms which are apt and appropriate to convey a fee — “to my nephew, Julius H. Walker, and Ms heirs.” And finally, we observe that there is no residuary clause in the will, disclosing even an apprehension that she had left any portion of her estate undisposed of. We have, then, a case in which the testatrix has, in express terms, declared her purpose to dispose of her entire estate, which, the authorities above cited show, means not merely the entire corpus of the property, but the whole of her interest therein, which is conceded to have been a fee; and we find her using the most apt and appropriate technical words to convey such an interest — to the trustee “and Ms heirs” — and therefore I cannot doubt that she intended to confer a fee upon the trustee, and that she executed that intention in the most approved form of law.

If this be so, then, as it seems to me, it follows inevitably that there could have been no intestacy. If the entire interest of the testatrix — the fee — passed to the trustee by the terms of the will, there could, of course, be nothing left to descend to the heirs or representatives — no intestacy.

It is said, however, that this being a devise to a trustee, who, it is conceded, takes no beneficial interest, the well settled rule is, that however ample may be the terms in which a devise to a trustee is made, he will only take such an estate as may be necessary to the complete execution of the trusts created; that a devise to a trustee and his heirs does not necessarily create in him an estate in fee, though the terms used are sufficient to create such an estate, but that his estate will be measured by the purposes for which it was created, and will be cut down to such an estate as will be sufficient to serve those purposes. Conceding, for the purposes of this discussion, the correctness of that rule in its broadest extent, before it can have any practical application to this case, it would be necessary to show that the objects of the trust created by the will could be fully accomplished by an estate in the trustee less than a fee. We must therefore inquire into the objects of the trusts created. Without going into any detailed statement of these trusts, which are minutely specified in the will, a copy of which will doubtless be embraced in the report of this case, it will be sufficient to say in general terms that the trustee was to hold the estate for the sole and separate use of Mrs. Blount during her life, in such a way as that the same could not be reached by her creditors, or disposed of by her, but with power in the trustee, upon her written request, to sell the same or any part thereof, if he should deem it expedient to do so, and either reinvest the proceeds “or else turn the same over to the said Mrs. Blount for her sole, separate, and absolute use, freed and discharged of all trusts.”

Now, while it may be conceded that, so far as what may be called the primary object of this trust — protecting the estate during the life of Mrs. Blount — is concerned, such object might be fully accomplished by placing an estate for the life of Mrs. Blount in the trustee, or cutting down his estate in fee to an estate pur autre vie, yet I do not see how the next object — the power of sale — could be accomplished except by leaving in the trustee an estate in fee; exactly what the testatrix had in express terms conferred upon him. For it seems to me to be well settled, both upon principle and authority, that a devise to trustees and their heirs, with power to sell, necessarily imports a fee, as they cannot convey any greatér' estate than that which they hold — they cannot sell and convey the fee unless the fee is in them. As is said by Harper, Oh., in Ex parte Gadsden, 3 Rich., at page 477 : “The power to sell relates to the whole estate, and to satisfy that the whole must remain in them.” See also Ayer v. Ritter (29 S. C., 135), where the more recent cases are collected. It is true, these cases were concerned with the question as to whether the statute of uses had executed the use, but still they serve to show that where the power of sale is conferred upon trustees, it is necessary to the execution of such power that the legal estate should remain in the trustees. If, therefore, the estate in fee vested in the trustee, Julius H. Walker, by the terms of the will, it must remain in him in order to accomplish one of the objects of the trust, and it could not, under the rule invoked, be cut down to any lesser estate. So, too, if his estate should be thus cut down, I do not see how he could have performed another duty required by the terms of the trust — turn over the proceeds of any sale he might make “to the said Mrs. Blount for her sole, separate, and absolute use, freed and discharged of all trusts,” if she so directed in writing.

It is said, however, that as this power of sale does not appear to have been exercised, the event shows that there was no necessity for the fee to remain in the trustee. But it must be remembered that we are now considering the question of intestacy, and must therefore look at the case as it was presented at the time of the death of Mrs. Harris, when the fee must necessarily have passed to some one, as it could not be in abeyance. If it then vested in the trustee, it could not afterwards be taken out of him except by the operation of the statute of uses, or by his own conveyance, or by some provision in the will by way of executory devise. It could never afterwards pass to the heirs as intestate property. As is said by Harper, Ch.. in Ex parte Gadsen, supra : “But if the fee be once vested in the trustees, the inheritance remains in them; unless perhaps a shifting use should be created by the terms of the deed or will.” Now, as the testatrix in this case made a devise to the trustee not only in terms amply sufficient to create a fee, but also imposed upon the trustee a duty, to the proper performance of which it was necessary for the trustee to have the fee, it would seem to follow necessarily that the fee then passed to the trustee, and the fact that he was never afterwards called upon to exercise the power of sale cannot affect the question. He might have been called upon at any moment, up to the time of Mrs. Blount’s, death to exercise the power, and the testatrix knowing this, and intending to provide for such a contingency, invested him with such an estate as was necessary to enable him to execute such power, whenever its exercise might be called for.

But it is contended that immediately upon the death of Mrs. Harris the fee descended to and was vested in her heirs as a qualified and determinable fee, subjected to be divested by the exercise of the power of sale, and snch power not having been exercised, the fee became absolute in the heirs. Without stopping to inquire whether such an estate could arise by descent, inasmuch as the heir is supposed to take the same estate with which the ancestor was clothed, it is sufficient to say that the only authority cited (Peay v. Peay, 2 Rich. Eq., 409), was a case in which the estate was created by deed, and did not arise by descent. In that case Taylor, in consideration of twenty thousand dollars paid to him by Austin E. Peay, conveyed to a trustee in fee certain property, real estate, “in trust for the use of said Austin E. Peay, his heirs and assigns forever, and to permit the said Austin F. Peay to have and possess the same, and to enjoy the profits thereof, and in trust to convey the same to such person or persons as the said Austin E. Peay shall by deed or will, or other writing under his hand, direct and appoint.” The only question was, whether the widow of Austin E. Peay was entitled to dower in the premises, the power of appointment never having been exercised. The court held that the statute executed the use in Austin F. Peay, creating in him a qualified fee, subject to be divested by the exercise of the power of appointment, upon the principle laid down by Lord Eldon in Maundrell v. Maundrell (10 Ves., 264), “That where there is a power to A to appoint, and till he makes an appointment, or, for want of an appointment, to him and his heirs, the fee in the meantime is vested in him, as that qualified fee which is to yield the estate which may arise out of the execution of the power.” The case of Peay v. Peay is so wholly different in all its.features from the one under consideration, that I do not see how it can afford any authority for the proposition contended for. It was manifestly a futile attempt to defeat the wife’s right of dower, and the court so hold. There the manifest object of the deed was to create such an estate in Austin F. Peay as would not be subject to dower, while here it is quite clear that the testator did not intend to create any estate of any kind in her heirs as such.

If, then, the trustee was invested with a fee simple estate by the terms of the will, the next inquiry is, whether such estate has ever passed out of him. Inasmuch as Mrs. Blount died without issue and without having exercised the power of appointment, it is quite clear that this estate has not passed out of the trustee by the provisions of the third clause of the will, and therefore the real question on this branch of the case is, whether the estate in fee has been carried out of the trustee by the operation of the statute of uses. As that statute has no application to personal property (Harley v. Platts, 6 Rich., 315; Lanier v. Bronson, 21 S. C., 41), there can be no question as to that class of property. As to the real estate, it seems to me that the overwhelming weight of authority shows that the statute did not execute the use for two reasons: 1st, because a use is limited upon a use; 2nd, because certain duties were required of the trustee which rendered it necessary for the legal estate to remain in the trustee. See Ayer v. Ritter, supra, and the cases there cited. It follows, therefore, that the estate still remains in the trustee, and can only pass out of him by his own conveyance.

But as it is conceded that the trustee can take no beneficial interest under the will, equity will not permit him to hold the estate for his own benefit, but will raise what is called a resulting trust in favor of the heirs of the testatrix, and the vital question remains, who are such heirs ? Are they those who could bring themselves within that class at the time of the death of the testatrix, or are they those only who can bring themselves within such class at the time the resulting trust arises ? I do not find any authority directly in point upon this question, but it seems to me upon principle and from the analogies of decided cases, that the trust results in favor of those only who can bring themselves within the class of heirs at the time such trust arises. It is necessary, then, to inquire when such trust arose ; and it seems to me clear that it could not arise until after the death of Mrs. Blount, for up to the time of her death she might have had issue, might have died in giving birth to issue, or might have executed the power of appointment in her last moments, and, therefore, until she was dead there could be no resulting trust. No trust could result in favor of Mrs. Blount, who, at the time of the death of the testatrix, was her sole heir, for as long as she continued to live the trust could not possibly arise. Up to the time of her death it was a mere possibility, not an estate, or even an interest in an estate, with the right of possession postponed.

If this resulting trust had arisen under a deed instead of a will, and the grantor were still living, the trust would have resulted to the grantor; but this right of reverter, so to speak, for strictly speaking it is not a reverter, would not be an estate in the grantor capable of being passed by devise or inheritance to the devisee or heir of the grantor, but would be a mere possibility, until the happening of the events which would give birth to the trust. When, however, the event happened which gives rise to the trust, it would become an estate in the grantor, and would then be capable of passing by devise or inheritance. Upon the same principle, it seems to me that in this case, where the resulting trust arises under a will, it must result to those who are able to bring themselves under the class of heirs of the testatrix at the time when the trust arises, and as Mrs. Walker was then the sole heir of the testatrix, the trust results in her favor and she is entitled to demand from the trustee a transfer of the whole estate to her.

It is analogous to the possibility of reverter after the termination of an estate in fee conditional, which is not an estate, but a mere possibility. It is neither a present nor a future right, but a mere possibility that a right may arise upon the happening of a contingency, which is not the subject of either devise or inheritance. This is because the grant or devise of a fee conditional passes the whole estate to the tenant in fee, leaving nothing in the grantor or devisor which can be the subject of devise or inheritance, and hence it is settled that, upon the termination of such an estate, it goes to those who can bring themselves into the class of heirs of the person creating the estate at the time when the estate terminates, and not to those who were heirs at the time of the death of such person. Adams v. Chaplin, 1 Hill Ch., 265; Deas v. Horry, 2 Hill Ch., 244; Pearse v. Killian, McMull. Eq., 231. Now, if the possibility of reverter after the termination.of an estate in fee conditional enures to the benefit of those who answer the description of heirs of the person creating such estate, at the time when the estate terminates, because a conveyance of such an estate leaves nothing in the grantor or devisor, as the case may be, capable of being devised or inherited, it would seem to follow that, for the same reason, a resulting trust which arises after the conveyance of an estate in fee simple, ought to take the same course.

It only remains to notice some of the cases which seem to be mainly relied on to support a contrary view. Pulliam v. Byrd, (2 Strob. Eq., 134), was very different from the case under consideration. In that case the testator gave his whole estate to his wife for life, with power to dispose of one half thereof at her death, and the wife having died without exercising the power, the question was as to the proper distribution of the estate. The court holding that a gift to one for life witli a general power of appointment will not enlarge the life estate into a fee unless the power is exercised, determined that the will made no disposition of the remainder after the termination of the wife’s life estate, and hence such remainder became distributable as in case of intestacy. I do not see how that case has any application to the present. There the testator did not even undertake to dispose of the fee, and, of course, immediately upon his death it descended to his heirs, subject only to the life estate of the wife, and upon the termination of that estate became divisible amongst those in whom it had previously vested. Here, however, the testatrix did dispose of the fee, leaving nothing in her to descend to her. heirs. So in Rochell v. Tompkins (1 Strob. Eq., 314), the devise was to the wife for life only, “and at her death to return to and become a part of his estateand as this reversion, as it was called, was not disposed of by the will, there was clearly a case. of intestacy, so far as it was concerned, and it descended immediately to the heirs of the testator, of whom, of course, the wdfe was one.

In Seabrook v. Seabrook (10 Rich. Eq., 495), the testator devised real estate to his son for life with remainder to his issue, and in default of issue he directed that the land should “revert to his estate,” and he then devised “the lands so reverting unto my right heirs forever.” The son having died without issue, the question was as to the disposition of the lands so reverting. Held, that the heirs of the testator, including the widow, took the reversion, not under the will, but by descent, upon the principle that where a testator devises his estate to those upon whom the law would cast the estate if there were no will, the devise is nugatory and void, and the parties take by descent, and not under the will. This case is not applicable, for the reason that there being no trustee, there was no one in whom the fee could vest, and hence it could not pass out of the testator except upon a contingency which never happened, and remaining in him, it, of course, descended immediately upon his death to his heirs, as his attempt to dispose of it was nugatory. Indeed, the real controversy in that case was whether the widow was barred of any right to share in the reversion by another clause in the will, and as she was unquestionably one of the heirs of the testator, both at the time of his death and at the time the reversion fell in, no such question as that with which w'e are concerned could have arisen in that case.

In Glover v. Adams (11 Rich. Eq., 264), followed in Shaffer v. McDuffie (14 Rich. Eq., 146), property of the wife was conveyed by marriage settlement to trustees in trust for the joint use of husband and wife during coverture, and if the husband survived, to his use during life, and after his death to such person or persons as the wife by will might appoint, and failing such appointment, to her legal heirs and representatives. The wife having died without exercising the power of appointment, leaving the husband surviving, upon his death the question was who were entitled. Held, that the remainder, after the termination of the life estates, having become vested in the heirs of the wife at the time of her death, amongst whom was the husband, his share became transmissible to his representatives. There is plainly no analogy between that case and this; for in that case the remainder, by the terms of the deed, became Vested in the heirs of the wife immediately upon her death, and there could not have been any resulting trust.

In Farrow v. Farrow (12 S. C., 168), property was devised to a trustee “in trust for the use and benefit of my son, John W. Farrow, during bis life, and at his death to be equally divided between his wife, Emma Farrow, and the children he may leave living, share and share alike.” The wife survived the testator, but died before her husband, the life tenant, and the question was, whether the legal representatives of the wife, upon the death of the life tenant, were entitled to any interest in the property. Held, that the wife, 'under the term* of the will, took a vested remainder, which, of course, was transmissible to her representatives. So that in that case there was no resulting trust, and I do not see its applicability to the present controversy. Indeed, in none of these cases was there any resulting trust, and the property passed under the terms of the deed or will, while here it does not pass under the terms of the will, but remains in the hands of the trustee to whom it had been devised in fee, subject to a resulting trust which the law raised and which a Court of Equity will require the trustee to execute. The same remarks will apply to the case of Hicks v. Pegues (4 Rich. Eq., 413), and Buist v. Dawes, reported in a note to that case.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case remanded to that court for the purpose of carrying into effect the views herein set forth.

Mit. JustiCE McGowan concurred.