Burkett v. Whittemore

15 S.E. 616, 36 S.C. 428, 1892 S.C. LEXIS 108

• Court: Supreme Court of South Carolina
• Decided: July 20, 1892
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Chief Justice McIver.

This case was originally heard at November term, 1890, but owing to a difference of opinion between the only two Justices then upon the bench, a re-argument became necessary, arid the case was fina'ly heard by a full bench during November term, 1891; ami there still being a difference of opinion as to one of the questions involved, it has been thought best that the members of the court should file separate opinions.

Nancy Sledge, by her last will and testament, which was admitted to probate in March, 1861, devised to her daughter, Penelope Cogblan, who was then, and continued to be up to the time of her death, a married woman, á certain house and lot in the town of Sumter, “to be for her sole and separate use for her life,' and not in any way subject to the debts or contracts of her husband — subject, however, to be disposed of in any manner her said daughter may direct in her life-time by deed, or by will at her death.” On the 2nd of July, 1861, Penelope, by virtue of the power conferred upon her by the will of her mother, and “for the purpose of disposing of the property, real and personal, and all the interests and estate of whatever description, devised and bequeathed to me in and by the said last will and testament, and for the purpose of disposing of all other property, real and personal, of which I may die possessed, and which I may, in any w¡iy, liave the power of devising and bequeathing.” made her last will and testament, which was duly admitted to probate, in common form, soon after her death in 1883, by which she devised and bequeathed her entire estate “above referred to” to the defendant, Emily, and certain other persons, who need not be specified, as it is conceded that they have transferred all their interests to the said defendant, who is, therefore, practically the sole devisee.

After the execution of her will, the said Penelope, some time in the year 1863, by virtue of the power contained in the will of Mi's. Sledge, sold and conveyed a portion of the said lot to Margaret Dougherty, who paid one half of the purchase money in cash, and gave to said Penelope her bond, secured by a mortgage of the premises, for the other half. This bond remaining unpaid at the time of the death of Margaret Dougherty, her heirs at law, in consideration of the surrender of said bond and mortgage, re-conveyed the said premises, by deed dated 15th of January, 1867, to the defendant, Gardner, “in trust for the sole and separate use of the said Penelope Coghlan, during her life, with power to her to dispose of the same by deed or will,” &c. It further appears that Nancy Sledge, previous to the execution of her will, to wit, in 185-3, conveyed to a trustee for said Penelope other real and personal property, which was subsequently, to wit, in 1862, sold under an order of the court; and that the said Penelope, in the years 1869 and 1875, acquired, by purchase from third persons, three other parcels of land, which she held in fee simple absolute up to the time of her death, though the defendant, Adam Sledge, sets up a claim to one of these parcels, which not having vet been adjudicated, may be dismissed from further notice in considering the present appeal.

On the 14th of April, 1886, this action was commenced by the plaintiff for the partition of that portion of the lot in the town of Sumter which had been conveyed to Margaret Dougherty, and by her heirs reconveyed to the said Penelope (which, for convenience, will be hereinafter designated as the Dougherty lot), as well as of the three parcels of land conveyed to said Penelope in fee simple absolute by third persons, and that the defendant, Emily, be required to account to the plaintiff for the rents of the said land--. This claim on the part of the plaintiff is based upon the theory that the said Penelope died intestate as to the Dough-erty lot and the said three parcels of land, and that he, as one of her heirs at law, is entitled to .demand partition thereof. The case first came before his honor, Judge Cothran, when a demurrer was interposed by defendants for want of jurisdiction, which was overruled and defendants duly excepted. It was subsequen ly heard, upon the merits, by his honor, Judge Pressley, who held that the whole of the lot in the town of Sumter passed under the will of Penelope to her devisees, and hence plaintiff had no claim to partition of any portion of that lot, but that he was entitled to partition of the other three parcels of land (reserving, however, the question as to defendant, Adam Sledge’s, claim to one of those parcels), and to an account of the rents and profits thereof. From this judgment both parties appeal upon the several grounds set out in the record. Without stating or following these several grounds, we propose to consider what we understand to be the questions presented thereby.

1 The first in natural order is as to the jurisdiction of the court. It seems to be contended, that after a will has been admitted to probate by the tribunal appointed for that purpose, its validity is no longer open to question, except by appeal from the decree of the Court of Probate, and hence that the Court of Common Pleas has no jurisdiction to consider or determine the main question raised by this case, to wit, whether Penelope Coghlan died intestate as to the Dougherty lot. This position cannot be sustained. The admission of a will to probate, either in common or solemn form, does not preclude inquiry into the validity of one or more of the provisions therein contained, or of their proper construction or legal effect. It simply establishes the fact, that a will has been made according to the form prescribed by statute. Tygart v. Peeples, 9 Rich. Eq., 46; Craig v. Beatty, 11 S. C., 375. The question here is not whether Penelope Coghlan has made a will; that is conceded. But the question is, whether such will was made in execution of the power of appointment created by the will of her mother, as to a certain portion of the property of which she died seized and possessed. ¹ We concur, therefore, in the view which seems to have been taken both by Judge Cothran and Judge Pressley.

2 The next question is whether the'three parcels of land acquired by Penelope Coghlan in 1869 and 1875 passed under her will. While it is true that under the provisions of the act of 1858, now incorporated in the General Statutes as section 1850, real as well as personal property acquired by a testator after the execution of his will, may pass thereby, yet as Penelope, at the time of making her will, was a married woman, and, therefore, not at that time endowed with testamentary capacity, except as an execution of a power, and as it is not pretended that she had ever been invested with any power to devise those lands, we do not think those parcels of land could pass under her will. The removal of her disability, arising from coverture, by the Constitution of 1868, could not render valid her will executed in 1861, unless it had been republished after such removal of her disability. Being '■‘■iniestable,” as the books term it, at the time of the execution of her will, except in the execution of a power, her will is a nullity in so far as it purports to dispose of any property over which she had not then been invested with the power of disposal. 1 Jarman on Wills (Perkins edit.), 37. Practically, therefore, Mrs. Coghlan never made a will disposing of these three parcels of land, and she must be regarded as having died intestate as to that property.

3 Our next inquiry is, whether there has been a valid disposition of the Dougherty lot by the will of Penelope Coghlan. It being admitted that this lot was conveyed to Margaret Dough-erty by the said Penelope “in the exercise of the power conferred upon her by the will of the said Nancy Sledge,” it seems to me that by such conveyance the power was extinguished — became functus officio — and hence such lot could not pass under the will of Penelope to her devisees, the title thereto having been vested in Miss Dougherty during the life-time of Mrs. Coghlan. Nor do I think that the will of Mrs. Coghlan executed in 1861 could operate as the execution of a power conferred upon her in the deed from the Dougherty heirs dated in 1867, unless such will had been republished after the execution of such deed, which was not done. It seems to me that it would be extraordinary (not to use a stronger term) to say that a power could be executed before it was created. I do not see how it is possible to hold that a paper executed in 1861 could be the execution of a power not created until 1867. And' as the Dougherty lot could not pass under the will of Mrs. Coghlan as after-acquired real estate, for the reason indicated in considering the same question as to the three parcels of land, I am of opinion that as to such lot Mrs. Coghlan died intestate, and hence it is subject to partition amongst her heirs at law.. I think the judgment below should, therefore, in this respect, be reversed.

I cannot concur with the Circuit Judge in either of the reasons upon which he based his conclusion upon this point. The fact that Penelope Coghlan took a mortgage from Margaret Dougherty to secure the payment of the balance of the purchase money, cannot affect the question. The mortgage was a mere lien on the land, and did not transfer any estate or interest whatsoever therein. That was vested solely in Margaret Dough-erty by the conveyance of Penelope Coghlan, in pursuance of the power conferred by the will of Nancy Sledge, and she held it absolutely free from any claim of interest therein, or of any right or power of appointment by Penelope, which she had held previously, but which she had parted with by such conveyance.' When, therefore, the property wa.s reconveyed to Mrs. Coghlan in 1867, in consideration of the surrender of the bond for the balance due on the purchase money, and a release of the lien of the mortgage she held under a new title, accompanied with a new power of appointment, then created, which was in no way refer-rable to the original power of appointment which had been extinguished by its exercise. I do not see how it is possible to reconcile the view taken by the Circuit Judge with the express terms of the act of 1791, as construed in several recent decisions of this court, whereby a mortgage has been deprived of every attribute of a conveyance and declared to operate simply as a lien.

It is stated by the Circuit Judge, as a fact supporting his view, that the reconveyance to Penelope by the. Dougherty heirs, contains a recital of the powers conferred by the will of Nancy Sledge, which he assumes was made at the request of Penelope, for the purpose of showing that she intended to replace the property into the condition under which it was placed by the will of Nancy Sledge. That reconveyance is not before us, and we do not know what it contains, except as stated in the “Case.” But whatever may be the terms of such recital, I cannot see how it would be possible for the heirs of Miss Dougherty to revive powers created by the will of Nancy Sledge, which had been ext'n-guished by the exercise thereof by the donee of such powers; and I would rather be disposed to infer that the purpose of such recital was to then create new powers, similar to those which had been created by the will of Nancy Sledge.

. The second reason given by the Circuit Judge to sustain his conclusion as to this point is not, in my judgment, well founded. While it is true that the power conferred upon Mrs. Coghlan by the Dougherty reconveyance to dispose of this property by will, authorized her to do so notwithstanding her coverture, yet, at the time her will was made, she could only do so'in the execution of such power, and, as I have said, her will executed in 1861, cannot be regarded as the execution of a power which was never conferred until six years afterwards. I suppose there can be no doubt that if the lot had never been reconveyed to Mrs. Coghlan, her will could have had no possible effect upon it. For when she sold and conveyed this lot to Miss Dougherty, she parted absolutely and forever with all right, title, and interest in, or power over, said lot, which she had acquired under the will of Mrs. Sledge. When, therefore, she repurchased the lot in 1867, she acquired a new and distinct title from that which she had prer viously held and had disposed of, and hence all her interest in and power over the same must necessarily have been derived solely from the deed of the Dougherty heirs; and unless under that deed she acquired and exercised the power to dispose of the same, it is obvious to my mind that she had no more authority to dispose of that lot than she would have had to dispose of any other real estate of which she had made an absolute sale and conveyance. It seems to me that there can be no doubt that the sale to Miss Dougherty in 1863 was intended to be, and actually was, an absolute sale and conveyance, and that there was nothing preten-siue about it. In this respect, therefore, this case differs widely from the case of Bowen v. Chase, 94 U. S., 812, for the decision in that case turned upon the fact that the sales to Hamilton and Phillipson were in fact ‘"pretensive.” Indeed, while that case does not decide the point, yet there is much in it favorable to the view which I have adopted.

I do not see how it is possible to regard the reconveyance in 1867 as a rescission of the previous sale made in 1863, for it has none of the features incident to such a transaction, and the papers do not purport to show that any such idea was in the minds of the parties. That portion of the purcha-e money which had been paid was not refunded, so far as we are informed, and there is nothing whatever to show that any provision with respect to that was made, or was in the minds of the parties. Then, too, the reconveyance was made to a third person ; and the very fact that the reconveyance contained a power to Mrs. Coghlan to dispose of the property by will, negatived the idea that the parties supposed that the transaction was intended to be a mere cancellation of the previous sale (even if they had the power to do so), and a restoration of matters to their original condition. For if so, the insertion of the power would have been a nugatory act.

4 It seems to me, therefore, that the turning point of the whole case is, whether the will of Mrs. Coghlan, made in 18(51, can be regarded as an execution of a power never conferred until six years afterwards. While it is true that a passage from the recent work of Farwell on Powers has been quoted to sustain the view contended for by respondent, yet it seems to me that a close examination will show that that view is based upon English decisions rendered since the changes in the English Statute of Wills, and are therefore not applicable here. At all events, it will be seen by reference to 18 Am. & Eng. En-eycl. of Law, 933, that there is a conflict of authority elsewhere as to this point; and as we have no distinct decision upon the question in this State, we are at liberty to adopt the view most consonant with reason, and with the principles which have been recognized in this State.

Now, in the first place, it is difficult to understand how an act-done years prior to the creation of a power can be regarded as an execution of such power. WThile it is true that a will takes effect at the death of the testator — speaks at that time — yet it is equally true that, for some purposes, it is legitimate and proper to refer to the date of the execution of the will. Prior to the act of 1858, which has no reference to the execution of a power, real estate acquired after the execution of the will did not pass; and upon the same principle it seems to me that a power to dispose of real estate, created after the execution of the will, could not be regarded as executed by such will. But what is more to the point, the doctrine is well settled, both here and elsewhere, that where the question is as to whether a given act has been done in the execution of a power, the vital inquiry is whether the donee of the power, in doing the act, intended it as an execution of the power. See Boyd v. Satterwhite, 10 S. C., 45; Bilderback v. Boyce, 14 Id., 528; Lee v. Simpson, 134 U. S., 572. Now, it is absolutely impossible to suppose that Mrs. Coghlan intended, at the time she executed her will in 1861, to exercise a power •which never existed until six years afterwards. She did doubtless intend to execute the power conferred by the will of Mrs. Sledge, but as so much of her will as related to the Dougherty lot was unquestionably revoked by the subsequent conveyance to Miss Dougherty, the devise to respondent must necessarily rest upon the new power contained in the Dougherty deed, if, indeed, it has anything to rest upon.

I think, therefore, that the judgment of the Circuit Court as to this point should be reversed; but as a majority of the court, as will be seen by the separate opinions herewith filed, are of a different opinion, the judgment of this court is, that the judgment of the Circuit Court be affirmed.