Dick v. Harby

26 S.E. 900, 48 S.C. 516, 1897 S.C. LEXIS 126

• Court: Supreme Court of South Carolina
• Decided: March 20, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

Judge Buchanan heard a controversy without action in the Court of Common Pleas for Sumter County, in this State, on the 1st day of December, -1896. The object of the action was to compel the defendant to take the title, to the land described hereinafter, tendered to the defendant by the plaintiff, and which title the defendant had declined to take, because she alleged it was not a good marketable title. The following agreement sets out the facts to be used at the hearing: “On the 20th day of November, 1896, the plaintiff and the defendant entered into an agreement in writing, whereby the plaintiff contracted and agreed to sell and convey to her (the defendant), by proper deed, with covenant of general warranty, all that piece, parcel or tract of land, situate and being in the county and State aforesaid, commonly known as the Dick place, containing ninty-nine acres, more or less, * * * at the price of $2,000. * * * That the plaintiff duly tendered to the defendant his deed to said premises, containing full covenants of general warranty, pursuant to his said agrément, but the defendant refuses to accept said deed, or comply with the terms of said contract on her part, upon the ground that the same does not convey a good marketable title to the said land, because she claims that said premises are affected by the limitations of the will of Robert Bradford, deceased, and the title rendered invalid by reason thereof. Robert Bradford departed this life in the year 1850, leaving of force his last will and testament, which was duly admitted to probate in the proper office for said county. The clauses of said will affecting this controversy are as follows: ‘Sixth. I give and bequeath to my son, John S. Bradford, in trust, and to and for the sole and separate use of my daughter, Mary Ann Elizabeth Bradford, during her life, all the lands whereon I now live, and all my real estate other than that hereinbefore devised to her brother; also, the other half of all my personal' estate of every description whatever; and after her death, I devise and bequeath the said real and personal estate in this clause mentioned to her issue living at her death. Tenth. I constitute and appoint my son, John S. Bradford, and my son-in-law, Gabriel Wesley Bradford, executors of this my last will and testament. Eleventh. If occasion should arise in the opinion of my executors to sell any portion of my estate, they are hereby authorized to make such sale, and to reinvest the proceeds to such uses as are prescribed in relation to the property sold.’ Testator also provided for cross-remainders amongst the issue of his said son and daughter, and if both should die without issue, then over, with directions to his executors for the ultimate partition and division of his estate. Both executors duly qualified, and entered upon the discharge of their duties. Gabriel Wesley Bradford, one of the executors, was also the son-in-law of the testator, the husband of Mrs. Mary Ann Elizabeth Bradford, mentioned in the sixth clause of the will. John S. Bradford, the trustee under the sixth clause, and one of the qualified executors, died in the year 1854. He left surviving him a son, John R. Bradford, his heir at the common law, who died about the year 1890. In 1871, by proper proceedings in the Court of Common Pleas for Sumter County, James Henry Dingle was duly appointed trustee under said will in the place of the deceased trustee. Mr. Dingle died in the year 1887. In February, 1858, the surviving executor, Gabriel Wesley Bradford, in consideration of the sum of $1,000, conve5>-ed the above described premises to one Mrs. Sarah Brown in fee simple. In this deed no reference is made to the power of sale contained in said will, nor did Gabriel Wesley Bradford sign himself as executor of the said will. This deed was duly recorded. The property was a part of the lands on which testator resided, mentioned in his will. Upon her purchase, Mrs. Brown entered into possession of the premises, and remained so until she died, in the year 1869, and after her death, her heirs remained in possession until March, 1875, when they conveyed to John S. Richardson, also in fee simple. In 1879, John S. Richardson conveyed this land to the Rev. James McDowell, trustee for Mrs. Robert J.'Dick and her children, the plaintiff being one of them. The plaintiff has recently purchased all interest under this trust deed, and now owns the entire estate. All the aforesaid parties used and occupied the premises adversely to all parties. Gabriel Wesley Bradford, the surviving executor, died about the year 1890. Mrs. Mary Ann Bradford, mentioned in the sixth clause of the will of her father, Robert Bradford, died in August, 1892, leaving numerous children and grandchildren. None of the admissions hereinafter contained are in anywise to affect either party, or to be regarded as made, except for the purpose of this submission of this controversy.”

The questions submitted to the Court upon this case are as follows: “1. 'Did the power of sale under the eleventh clause of the will of Robert Bradford survive in the executor, Gabriel Wesley Bradford, upon the death of his coexecutor, John S. Bradford, and could such surviving executor legally execute such power? 2. Was the deed of Gabriel Wesley Bradford to Mrs. Sarah Brown in February, 1858, a valid execution of such power? 3. If the foregoing questions are determined in the negative, then has the plaintiff, William Edward Dick, a good marketable title to said premises by adverse possession, and under the statute of limitations and the presumption arising from the connected possessions of his grantors for upwards of twenty years? If the first and second questions together, or the third question alone, is determined in the affirmative, then the plaintiff is to have judgment against the defendant for the specific performance of her contract to purchase. If all the foregoing questions are determined in the negative, then judgment is to be rendered for the defendant. William Edward Dick, Adeline W. Harby; Dee & Moise, plaintiffs’ attorneys; R. Dozier, defendant’s attorney.”

The decree of Judge Buchanan was filed on the 11th December, 1896, wherein he answered the three questions in the affirmative, and decreed specific performance by the defendant of her contract. From this decree Mrs. Harby has appealed. Det the decree and the exceptions thereto be reported.

1 First. As to the first exception, involving as it does the exercise of the power of sale'of the trust property of Mrs. Mary Ann Elizabeth Bradford by Gabriel Wesley Bradford, as the surviving executor of the last will of Robert Bradford, deceased. Robert Bradford seems to have had but two children, his son, John S. Bradford, and a daughter, Mrs. Mary Ann Elizabeth Bradford, who had intermarried with Gabriel Wesley Bradford, and this testator evidently desired that his estate, both real and personal, should not only be enjoyed in equal parts by his two. children, John S. and Mary A. E. Bradford, but that such property should remain for their issue living at the death of each one; and, further, that in the event either John S. or Mary A. E. Bradford should die without issue living at the death of either, such property, real and personal, should go to the issue of the survivor of them, and, indeed, even beyond this. Further to prevent the possibility of the marital right of the husband of Mary Ann Elizabeth Bradford attaching to her moiety of his estate, the testator, in the sixth clause, appointed John S. Bradford her trustee. And, further, in view of the fact that all the property he had provided for his two children, with such enduring trusts therein, might at some time need a change of investment, in the eleventh clause of his will, the testator provided that “if occasion should arise, in the opinion of my executors, to sell any portion of my estate, they are hereby authorized to make such sale, and reinvest the proceeds to such uses as are prescribed in relation to the property sold.” The language here used by the testator clearly evinces his purpose, that in the event it became desirable to sell any of the trust .property of either his son or his daughter, it might be done, if deemed best by his executors, provided that the proceeds of such sale when made should be reinvested in other property, to be subjected to like trusts as that the testator had devised and bequeathed. It seems to be admitted, that if John S. Bradford had united with Gabriel Wesley Bradford, his coexecutor, in the sale to Mrs. Sarah Brown of the land in question, the sale would have been valid; but it is earnestly insisted that John S. Bradford having died in 1854, leaving Gabriel Wesley Bradford as the surviving executor, that the latter, as sitch surviving executor, cou-ld not execute the power. It must be borne in mind, that the sixth clause of this will, while it appoints John S. Bradford trustee for his- sister, Mrs. Mary A. E. Bradford, simply places the legal title to her property in him as such trustee; it is absolutely free- of any power of control over such property by him as such trustee. As the Circuit Judge well observes, the terms of this will clearly show that the testator was not inops concelii in its preparation. The eleventh clause was evidently provided by the testator for a wise purpose, viz: to create a power to make changes in such trust property, and this power was vested in the office of the executors of his will, to be used at their discretion as executors; for it must always be kept in mind, that in a clause of the will just after the eleventh, the testator made the direction that his executors should make ultimate partition and division of his estate. It would seem, therefore, that the intention of the testator was that his son, John S. Bradford, should hold the legal title to the property left in trust for Mrs. Mary A. E. Bradford, but the power to change the investment thereof should be in his executors, who, also, should be clothed with the power to carry out the division or partition thereof amongst the issue living at the death of either John S. or Mary A. E. Bradford. In the nature of things, the two executors might not both live to carry out together these trusts; the testator makes no special provision for any such contingency. It must be assumed that he knew that the law clothed the surviving executor with all the power created in the will, unless the testator directed otherwise. Now, can the language in the eleventh clause, “if occasion should arise, in the opinion of my executors (italics ours), & c.,” be regarded as a limitation of this power to both John S. and Gabriel Wesley Bradford, so that the survivor could not exercise such power? We think our own decisions have answered this question, and that such power can be exercised legally by the survivor of such executors.

In DeSaussure v. Lyons, 9 S. C., 492, a testator had named six individuals as executors of his will, and had used the terms “trustees” and “executors” in connection with certain powers to sell real estate. Only three persons of the six who were named as “executors” and “trustees,” although the other three were alive, qualified, and having made a sale of some of testator’s lands in this State, the title was objected to, on the ground that only three of the six persons had exercised the power of such sale, and hence that the deed was invalid. The language of the will in that case was: “All the rest and residue and remainder of my estate, real and personal, * * * to my friends, Ambrose C. Kingsland, of New York, merchant; Cornelius K. Sutton, of the same place, merchant; Edward S. Hamilton, of the same place, merchant; my sister, Ursula Schmidt; my wife, Mary Elizabeth Schmidt; and my daughter, Ella D. Schmidt, my executors and executrix, as hereinafter named, and to the survivors and survivor of them, upon this special trust and confidence, nevertheless — that is to say, that they, my said trustees, or the survivors or survivor of them, * ■* * do and shall, at such time or times after my decease as they may think advantageous to my estate, sell and dispose of, on such terms and conditions as they may think fit, all of such real and personal estate.” Chief Justice Willard held that the power to sell attached to the office, saying: “It is clear that it is necessary to hold the trusts as incident to the office of executor in order to carry out the purposes of the will.” It will be observed that in the case cited the sale was to be made as in their opinion, as executors, it was deemed best and most advantageous for the estate of their testator.

The case of Reeves v. Tappan, 21 S. C., 1. The question in this case was whether a power created under the will of Robert N. Lewis in his executor, Daniel B. Lewis, could be validly executed by Mrs. Sarah Lewis, as the executrix of the will of Daniel B. Lewis; or, in other words, whether an executor of an executor, prior to the act of our General Assembly, passed in the year 1880, making a change in the law, could execute a power of the first executor. Amongst other things, this Court held: “Powers like this may be divided into three classes: 1. A naked common law power, like a power given to an attorney or agent to do any act. 2. A power, coupled with an interest in the donor. And, 3. A power which, when detached from the other parts of the will in which it is found conferred, would seem to be a mere naked power, but yet, when the whole will is considered, it appears that it was conferred to satisfy the whole intent thereof, and was intended to enable the executor to fully exercise his executorial duties. In the first class, no one but the party named can execute the power, and upon his death it expires. In the other two, the power survives, and is transmissible; and when vested in an executor, may be exercised by his executor.” “We regard the power in this case * * * as a power coupled with a trust, the trust being the execivtorship, and it was conferred upon the office of executor, so as to enable the party filling the office, whoever he might be, to property discharge its functions and duties1'1 (italics ours).

In the case of Smith v. Winn, 27 S, C., 591, it was developed that in the will of William Dong he had nominated three persons as the executors of his will, of whom only one, his widow, qualified as executrix. The contest was over this clause of testator’s will: “It is my will and desire and I do hereby direct the whole” (that is, the residue of his estate) “shall be appraised and divided by my executors, hereinafter named, into two equal parts — one of which, and that one which my wife shall choose or select, I give, devise, and bequeath to my said wife,” &c. Judge Kershaw, as the organ of this Court, said: “The principal question of law raised by the appeal concerns the power of the executrix to make the appraisement and partition of the estate, now sought to be set aside. Had she authority alone to execute the power conferred upon the executors to appraise and divide the estate? If it was a mere naked authority given to several persons, all must act. 4 Kent, 325; Mallet v. Smith, 6 Rich. Eq., 22; 60 A. D., 107. So, if it indicates a personal confidence in the persons n.amed, and the word executors is merely a designation of title. Mallet v. Smith, supra. The ground of the power being personal confidence, it is prima facie limited to the persons named, and will not survive without express words. Cole v. Wade, 16 Ves., 27. If, however, the power be conferred upon executors as such without naming those holding that office, and there is nothing to show that it is personal trust, the execution of the power appertains to the office of executor, and may be performed by the person holding the position, if the execution of the power be necessary in order to carry into effect the will of the testator. Jackson v. Ferris, 15 Johns, 347; DeSaussure v. Lyon, 9 S. C., 496; Forbes v. Peacock, 11 Mees & W., 636; Sugden on Powers, 139. If it be a power coupled with a trust, it survives and may be executed by one executor when the others die or renounce the office. The test of such power being coupled with a trust, is that a third party has such an interest as will enable him to call on an executor to execute the trust. Jackson v. Given, 16 Johns, 168; Franklin v. Osgood, 14 Johns, 527; Gaines Cases, 15; Taylor v. Benham, 5 Howard, 266; Peter v. Beverly, 10 Peters, 532. It cannot be doubted that the power in this case was one coupled with a trust, and to be executed by the executor, virtute officio, and necessary to be put into exercise, in order to execute the provisions of the will. Hence, it was properly executed by the only person who qualified as executor.”

In the case of Bredenburg v. Bardin, 36 S. C., 197, this Court held that an executrix who survived her coexecutor could legally make a sale of realty of her testator whose will had directed that his executors might sell lands for reinvestment. Justice McGowan delivered the opinion of the Court, stating: “The power was coupled with a trust and survived,” citing Smith v. Winn, supra, and Reeves v. Tappan, supra, in support of his conclusion.

In the case of Robinson v. Ostendorff, 38 S. C., 66, it was held that when a testator gave his executors power to sell lands for reinvestment, and upon the death of all the executors, an administrator cum testamento annexo having been appointed, a sale of land made by the latter was a valid exercise of the power created under the will to executors to sell for reinvestment, as they may deem expedient and proper.

But it is contended that the case of Mallet v. Smith, 6 Rich. Eq., 12, is an obstacle in the way of exercise of this power to sell for reinvestment by the surviving executor, Gabriel Wesley Bradford. The testator, William Hacket, by the fourth clause of his will had made provision for certain negro slaves; by the tenth clause he had made a bequest of $2,000 to his sister, Jennie Mallet, and in the fifteenth clause he had provided as follows: “Fifteenth. Should any of the legatees under this my will complain or express dissatisfaction with any disposition of my estate herein made, I hereby direct and empower my executors in their discretion to revoke any and all legacies such complaining legatee or legatees might have been entitled to, and to dispose of the same between my other legatees as to my executors may seem just and proper.” Three persons were named as executors, of whom one alone qualified. The sister named in the tenth clause objected to the provisions in the fourth clause of the will being carried out, as being directly violative of the act of our General Assembly, passed in 1841, to prevent slaves being manumitted and left in this State, &c., by denying any validity to any trusts created for that purpose. Therefore, the only qualified executor proceeded to take from the sister her legacy, &c. The Court of Appeals in Chancery held that the provisions of the will created a joint power in the three executors appointed by the testator, and their joint concurrence would be necessary to execute the power. This decision, as explained in the case of DeSaussure v. Lyon, supra, and in Smith v. Winn, supra, merely declared that when there was a personal duty or confidence conferred upon two or more executors, a concurrence of all named as such executors was necessary to execute such personal duty or confidence; a moment’s reflection will convince any one that to empower three persons to virtually make a new will for a man according to “their discretion” was personal, with a vengeance.

In the case at bar, the sale is not to be made by the executors to change the will; the trusts are to be strictly preserved. We think, therefore, the Circuit Judge committed no error, as is suggested in the first exception.

2 Second. Was the deed executed by Gabriel Wesley Bradford, without naming himself as executor, or otherwise referring to the will of Robert Bradford, an execution of the power to sell, as set out in the eleventh clause of the testator’s will? It is certain that Gabriel Wesley Bradford had no connection with this land except that derived under the will as its executor. Thirty-eight years have passed since the deed was made by him to Mrs. Sarah Brown, who at once thereafter took possession thereof, and ever since the year 1858, Mrs. Mary A. E. Bradford, her trustee or her issue, have been out of its possession. In the case cited in the Circuit decreé, to wit: that of Bilderback v. Boyce, 14 S. C., 528, this Court, following the English cases on this subject, declared: “In that case” (Doe d. Nowell v. Roake, 19 E. C. L., 497), “it was solemnly decided that the Court would infer an intent to execute a power only in three cases: first, when there was some reference in the will or other instrument to the power; second, or reference to the property which is the subject on which it is to be executed; third, or where the provision in the will would have no operation except as an execution of the power.” As we have before remarked, the grantor, Gabriel Wesley Bradford, was in the will, when the power was created, named as the executor by whom the power was to be executed, and the property upon which the power was to operate was named in said will. We think the Circuit Judge committed no error here.

Third. We do not feel that we are called upon to consider the third question. Our previous findings or conclusions of law make this third exception present an abstract question. We have, time and time again, announced that we will not consider abstract questions of law.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and the cause is remanded to the Circuit Court, to carry out the judgment of that Court.