Porter v. Thomas

23 Ga. 467

• Court: Supreme Court of Georgia
• Decided: November 15, 1857
• Status: Published

Opinion

By the Court —

McDonald, J.

delivering the opinion.

[1.] The first assignment of error presented in the record, is on the charge of the presiding Judge in the Court below, that this action was rightly brought against the ' defendant who was the overseer of the executors of the will of Henry P. Jones, and in that capacity had charge of the slaves sued for.

The gist of the action of trover is the wrongful conversion of the property of the plaintiff by the defendant, The wrongful defention of the property is a conversion, and, in a tortious act, all are principals and equally liable. A servant may be charged in trover though the conversion be done by him, however innocently, for the benefit of his master; and it is immaterial whether he had his master’s authority or not. Leigh’s nisi.prius 1480. Stephens vs. Elwall, 4. M. & S. 259.

The other points made in the record before us, depend entirely on the construction of John Fuhvood’s will.

[2.] What estate did his wife Mary Ful wood take under the will ? If a life estate with the power of appointment as to the reversion, was the instrument of writing executed by her to Joseph B. Jones, William B. Jones, James V. Jones, and Henry W. Jones, a good execution of that power? If not was her will, subsequently made, a good execution of it ?

We think that the testator limited the interest that his wife should take in his property to an estate for life. The words of the will are "I will and bequeath to my beloved wife, Mary, all my property, both real and personal, to be at her control during her natural life.” This clause of the will cannot, taken alone, vest a fee simple estate in Mrs. Fulwood, under oar statute, because a less estate is mentioned and limited in the bequest or devise. The word, “control,” cannot mean that she shall have an absolute fee simple, the power of sale, so as to pass a fee during her natural life. It cannot be used in a different sense from its usual signification and import. The testator, it is manifest, did not uso it in any other sense. He intended that she should have authority over it, the management, superintendence and use of it during her natural life. The subsequent part of that clause cannot enlarge the life estate into afee simple. I further will and request, that, at her death, she makes such a disposition of it as she thinks best.” Here, then, the testator gives to Mrs. Fulwood an estate for life only, with power, at her death to make such a disposition of the reversion as she might think best: It is too well established to admit now, of a question, under these circumstances, that she could not take a fee in the property. Jackson vs. Robus, 16. Johns. Rep. 588. Tomlinson vs. Dighton, 1. Peer Williams 149. The instrument executed by Mrs. Fulwood to the defendant’s employers, and by him given in evidence, recites that Mrs, Jones, (Mrs. Fulwood.) had the power to dispose of the property according to the will of John Fulwood.

[8.] Was that instrument a good execution of the power given in John Fulwood’s will? The language used by the testator is, “I further will and request, that at her death,” (Mary Fulwood’s death,) “she makes such a disposition of it as she thinks best.” The power is not created by precatory words merely. Tire testator expresses himself strongly. He “ wills and requests.” The time is also designated by the testator at which the power is to he executed. “ At her death,” the period at which many persons make their wills. He wills that, “ at her death, she makes such a disposition of it as she may think best.” The common sense as well as legal interpretation of this seutence is, that she should dispose of the property by will. The word “it,” in this sentence, relates to jhe property of the testator both real and personal; and cannot be made to apply as insisted in the argument, to the life estate given to Mrs. Fuhvood, without imputing to the testator the extreme, folly of directing the donee of the power, to dispose of an interest that must necessarily cease to exist at the very moment, that the instrument by which it is-conveyed must take effect, if it could take effect at all.

In this aspect of the ease, it is scarcely necessary to consider whether the instrument executed to the Joneses was a good execution of the power. If it be a deed, it was not a good execution of a power which could be executed by will alone. If a will, it was subject to be superseded by a subsequent repugnant will. Wo will not therefore consider, whether if there had been no subsequent disposition by will, made by her of the property, the appointment by that instrument would have been a valid execution of the power.

We repeat, that if the instrument should be construed as a deed, it is not a good execution of the power; and if a will, it was revocable and was revoked by the will subsequently executed. Under that last will, the plaintiff claims and was entitled to recover.

Judgment affirmed.