Lee v. Simpson

39 F. 235, 1889 U.S. App. LEXIS 2278

Opinion

Fuller, Chief Justice,

(after stating the facts as above.) In respect to jurisdiction, we are satisfied with the conclusions reached by the district judge when this cause came up on demurrer, and do not consider it necessary to add anything to the views then expressed. Lee v. Simpson, 37 Fed. Rep. 12. The main question for determination is, then, whether the property passed by the will of Mrs. Clemson as in duo execution of the power under the will and codicil of Mrs. Florido Calhoun. By that will and codicil three-fourths of the testatrix’s interest in the bond and mortgage of A. P. Calhoun was bequeathed to Mrs. Clemson for her sole and separate use during her life, the legal title being vested in a trustee, to be disposed of and the proceeds invested as she might direct, but to be held upon like trust, with power in her to change her trustee as she might desire; and she was also authorized and empowered to dispose of said bequest by will as she pleased, whatever form it had assumed, as by purchase of the Fort Hill property, or otherwise. The rule established by the weight of English authority prior to the statutes of 7 Wm. IV., and 1 Viet. c. 26, § 27, was that a will could not be held to be the execution of a power unless it referred to the power, or described the property subject to it, or would be inoperative if not acting upon such property; but the general rule in this country is more liberal, and the intention of the testator as the donee of the power to execute it, however manifested, whether directly or indirectly, positively or by just implication, is held to prevail, even though the will does not refer to the pow-er, nor designate the property, and the donee has other property upon which the will may operate; so that “the question is in every case a question of the intention of the donee of the power, taking into consideration not only the terms of his will, but the circumstances surrounding him at the time of its execution, such as the source of the power, the terms of the instrument creating it, and the extent of his present or past interest in the property subject to it.” Gray, C. J., Sewall v. Wilmer, 132 Mass. 134; Warner v. Insurance Co., 109 U. S. 357, 3 Sup. Ct. Rep. 221. And a general devise or bequest may be construed as including real or personal estate, of which the testator has a general power of appointment, unless a contrary intention appears by or can be deduced from the will. Funk v. Eggleston, 92 Ill. 515; White v. Hicks, 33 N. Y. 383; Blagge v. Miles, 1 Story, 427; Andrews v. Brumfield, 32 Miss. 108. In Blake v. Hawkins, 98 U. S. 315, 326, Mr. Justice Strong, speaking for the court, said:

“On the other hand, if the will contains no expressed intent to exert the power, yet, if it may be reasonably gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. After all, an appointment under a power is an intent to appoint, carried out, and, if made by will, the intent and its execution are to be sought for through the whole instrument.”

In Bilderback v. Boyce, 14 S. C. 528, the supreme court of South Carolina expresses its concurrence with the rule followed in the English chancery, with the modification, indicated by Mr. Justice Story in Blagge v. Miles, supra, that if the intention to execute is, under all the circumstances, apparent and clear, so that the transaction is not fairly susceptible of any other interpretation, the execution should be sustained. By her will Mrs. Clemson declares herself “entitled to legacies under the last will of my deceased mother, Floride Calhoun,” and to a distributive share in the estates of her sister and brother, and to have, “notwithstanding my coverture, full testamentary power to dispose of the same,” and she then proceeds to “will, devise, and bequeath the entire property and estate to which I am now in anywise entitled, and which I may hereafter acquire, of whatever the same may consist, to my beloved husband, Thomas G. Clemson, absolutely and in fee-simple.” If, however, she survives him, or he, surviving, dies intestate, then the entire property and estate is devised and bequeathed to her granddaughter, the complainant. The will is dated September 29,1871, and upon the’ 13th of December following Mrs. Clemson exercised the power of appointing a new trustee; the instrument reciting that by the will and codicil of her mother, Mrs. Floride Calhoun, she “is entitled to considerable legacies, the legal title of which is, by the will, vested in Edward Noble, Esq., of Abbeville county, in said state, as trustee,” and proceeding to appoint Thomas G. Clemson “as trustee under the will for the property therein bequeathed to me, and also for the property bequeathed me in the codicil,” in the place of said Noble. Clearly, the “legacies” to which Mrs. Clemson, by the instrument of appointment, stated she was “entitled,” and of which she appointed her husband trustee, were the same legacies to which, by the will, she declared herself entitled, and which she thereby devised and bequeathed to him. Having the right to the enjoyment, during life, of the property so held in trust, and the absolute power of disposing of it at her death, she treated it as being as much hers as the alleged distributive share; and, even if she possessed only a power over, and not an interest in, the property, it would be altogether too narrow and technical a construction, under the circumstances, to so limit the language, “I will, devise, and bequeath the entire property and estate to which I am now in anywise entitled, and which I may hereafter acquire, of whatever the same may consist,” as to exclude the exercise of the power. It is true that the mention of the distributive share allows it to be said that the instrument might have some effect by means of that interest, but this would not be all the effect the words import; and, if the intention to pass all can be discovered, it would seem that such intention ought to prevail. 2 Chance, Pow. p. 72, § 1597. The intent to dispose of all the estate here is apparent upon the face of the will, and, as the will plainly refers to the property covered by the power, its words cannot be satisfied unless the instrument operates as an execution of the power. Mrs. Clemson also asserted “full testamentary power to dispose of the same,” “notwithstanding my [her] coverture,” and it is ably argued by counsel that this assertion was made by way of emphasizing the fact that, shortly before, married women in South Carolina had been enabled to dispose of their property by will, and that therefore the assertion tends to sustain the contention that she regarded herself as dealing solely with property absolutely owned by her in her own right. But as such statement would, in that view, have been wholly uncalled for, and this particular property could only be disposed of by Mrs. Clemson by will-, while she could alienate her own property in any way she chose, the more reasonable inference seems to us to be that she referred to the power of disposition given by her mother’s testament, rather than to her legal capacity. In short, we think that, in addition to the reference to the property which was the subject of the power, there is reference to the power itself, and upon the whole case we can entertain no doubt that it was the intention of Mrs. Olemson to dispose of the property in question by her last will and testament, and that this intention was carried out in due execution of the power. The result, therefore, is that the bill must be dismissed, and it is so ordered.

Bono and Simonton, JJ., concurred.