Rutledge v. Crampton

ANDERSON, J.

The second clause of the will gave all of the testator’s property to his wife for and during her natural life, to he used by her for the support and comfort of “our children according to her direction.” The third clause authorized the wife to “sell and dispose of such portions of the property as she may think best, cither at public or private sale, and upon such terms as she may deem advisable.” The testator by the fourth clause directed that “any portion of my estate which may lemain shall be distributed among my heirs and in ■accordance with the laws of Alabama.” The will gives •an express estate for life, with devise over of what remains undisposed of, with express power in the first, taker “to sell and dispose of such portion of my estate as she may deem best, at public or private sale, and upon such terms as she may deem advisable.”

Under the common law Mrs. Bell took the absolute estate.—Bolman v. Lohman, 79 Ala. 63; Weathers v. Patterson, 30 Ala. 404; Flinn v. Davis, 18 Ala. 132; Alford’s Adm’r. v. Alford’s Adm’r., 56 Ala. 350; Randall v. Shrader, 20 Ala. 338; Allen v. White, 16 Ala. 181. The case of Flinn v. Davis, Allen v. White, and Randall v. Shrader, supra, were decided before the Code of 1852 went into operation, and in which appeared for the first time section 1325 (section 1046 of the Code of 1896), .and which is as follows: “When an absolute power of •disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such •estate is changed into a fee absolute, as to the lights of •creditors and purchasers, but subject to any future estafes limited thereon, in case the power is not executed, •or the lands sold for the satisfaction of debts, during the continuance of such particular estate.” Our court, speaking through Stone, J., in Alford’s Case, 56 Ala. 352, in discussing the meaning and effect of the foregoing statute said: “Whatever doubts may have been entertained of the correct rulings of this court, heretofore made, on the question we are considering those doubts are resolved by the statute copied above, so far as that statute extends. Where a life estate is created, and an absolute power of disposition conferred on the life tenant, this enlarges the life estate into a fee — not absolutely, but in favor, and only in favor, of the creditors and purchasers from the life tenant. But while the estate is thus enlarged in favor of creditors and punchaseis, the same statute declares that, in -case the power is not .executed, nor the lands sold foj; the satisfaction of debts, during the continuance of the particular estate, the property remains subject to any future estate limited thereon. In this case it is not contended that the power was executed or the proprty sold. We think the statute quoted was, in part, intended to confirm our decisions, so far as they affect creditors and purchasers, and also to protect the estates of those in remainder, in cases where there had been no sale or other execution of the power. Thus construed, the statute meets our hearty approbation; for it cannot be controverted that the principle on which our former decisions have been made to rest has never given satisfaction. Tiie public mind, professional as well as non-professional, has all the while felt that the wish and will of testators have been thereby defeated, rather than carried out. This section of the Revi-md Code was adopted fiom the Revised Statutes of New York; and Chancellor Kent has put the same construction on it.—4 Kent’s Com. marg. p. 320.”

This construction was approved by this court in the case of Wells v. Am. Mortgage Co., 109 Ala. 430, 20 South. 136. The New York court, in the case of Rose v. Hatch, 125 N. Y. 427, 26 N. E. 467, is in line with our decisions on this subject. In the case of Bolman v. Lehman, 79 Ala. 63, there is language used by Stone, C. J., which while applicable to the case- there discussed, would be misleading when applied to the general rule. There the wife was given the right- to sell or dispose of the property, with a remainder over to the children of all property undisposed of. The wife executed a valid mortgage to the property. The court said: “Under all the authorities, as well as the nature of things,, ,M>’s. Bolma-n took an absolute estate in the property, and could dispose of it as she pleased.” We think the court meant that she took an absolute estate, because she had executed the power to dispose of the property and the right of the purchaser was involved, but did not mean that she took an absolute estate to the extent of excluding the remainderman in the event she had made no proper disposition of the property before her death. She took an absolute estate in favor of creditors or .purchasers, because she disposed of it pursuant to the will and in a way permitted by the statute. We therefore think that the pivotal question in the case at bar is whether or not Mrs. Boll disposed of the property in compliance with the terms of the will and in conformity with our statute. If she did, the respondent would be a purchaser, and as to him Mis. Bell took the absolute estate. On the other hand if there was no valid disposition of the property, the remainder over was good, and the children would take under the will, and not by inheritance.

Counsel for appellee contends that Mrs. Bell took an unconditional aud absolute fee in the land; but the authorities relied upon do not support this contention, except, perhaps, those that were rendered before the enactment of section 1046 of the present Code. In the case of Adams v. Mason, 85 Ala. 454, 5 South. 219, there was no expa ess remainder over as to the legacy bequeathed under the fourth clause of the will, and which was the one construed by the court in holding that an absolute title was vested in “Dinah.” The case of Hood v. Bramlett, 105 Ala. 660, 17 South. 105, supports our conclusion in the case at bar. The court in that case upheld the remainder over as to one-half of the estate, but held that the life tenant took an absolute estate as to the'other half, because there was no express remainder over as to said half, and that a remainder by implication could. not affect the estate of the present taker, who was given full power of disposition. In the case of Smith v. Phillips, 131 Ala. 629, 30 South. 872, there was no express remainder over as to the house and lot given “Joseph Fitzpatrick*’, and as the property was given him for life, with full power to dispose of same, he took an absolute estate. The will in the case at bar authorized Mrs. Beli to dispose of the estate as she may think best, “either at public or private sale.” Section 1052 of the Code of 1896 is as follows: “No power of disposing of real ts-‘ fate can be executed, except by an instrument in writing which would be sufficient in law to pass the estate or iuteiest intended to pass under such power, if the person executing the power were the actual owner.”

Section 982 of the Code of 1896 says: “Conveyances for the alienation of lands must be written or printed, or partly written and partly printed, on parchment or paper, and must be signed at their foot by the contracting party, or his agent having a written authority1'; or if he is not able to sign his name, then his name must be written for him, with the words ‘his mark’ written against the same, or over it. The execution of such conveyance must be attested by one witness, or, where the party cannot write, by two witnesses who are able to write, and who must write their names as witnesses.” The bill avers that the only attempt made by Mrs. Bell to execute the power of disposition was by joining with the widow of Wm. B. Bell (whose estate owned one-half of the property) in a petition to the probate court to sell the land for division, and that it was sold under an order of said court, etc. The bill also avers “that the said life tenant never exercised the power given in the third clause of said «dll to sell said property.” The rule of construction is that, when conditions are attached to the execution of a power they must be strictly complied with,1 while the power itself is liberally construed to effect the -true purpose and intent of the donor; and in considering the exercise of a poAver, courts look to the intent, so that an informal execution Avill . be held sufficient, when not prohibited by Statute. 22 Am. & Eng. Ency. Law, subtit. “Poavers.” We have a statute, however, prescribing how powers must be exercised, and there is no latitude for the courts to uphold any exercise thereof short of a substantial compliance with the statute. Moreover, the bill avers that Mrs. Bell petitioned for a sale for a division among herself and the heirs of W. B. Bell, and did not make the remaindermen parties; nor does the bill aver that she was acting in her executorial capacity when she joined in the petition for a sale by the probate court. If she was acting individually^- and under the assumption that she took an absolute estate under the will, and was .merely seeking to divide the estate between herself and the heirs of Wm. B. Bell, then her action was not even an attempt to execute the power of sale given her in the will, the execution of which in compliance with the statute was essential to cut off the remaindermen.

Section 1052 has been construed by the court of New York, the state from which the same was taken, in the case of Jackson et al. v. Edwards, et al., 22 Wend. (N. Y.) 498, wheiein the court says: “Without an execution of the power of appointment by Mrs. Edwards, it was, I think, impossible to make a good title to the property during the lifetime of the husband. Her children, Avho had a contingent remainder in fee, and who would take the estate in the event of her death, living the husband, and Avitbout an execution of the power, were not parties to the pioceeding. The power Avas to be executed either by deed or will, and neither the assent of Sirs. EdAvards to a sale in her answer, nor her approval indorsed on the draft of the decree, can be regarded as a good execution of the power. Except by Avill, she could only execute it by an instrument duly acknowledged on a private examination, in the manner prescribed by laAV in relation to other conveyances by married women; and without such an acknowledgment the statute expressly provides that the grant ‘shall not be a valid execution of the power.’” In the case of Mathews v. McDade, 72 Ala. 377, the court upheld the sale, notwithstanding the order of sale Avas void, and referred the same to the power conferred by the will, and not the order of the court. The executor, h'oAvever, executed a deed to the purchaser-» Which brought the sale within the requirements of section 1052. In the case of McRae’s Adm’r v. McDonald, 57 Ala. 422, the court held that, while the order of sale Avas nugatory, it Aims an intention to execute the power conferred by the Avill. “The petition and order were to sell for the purpose of discharging the duties required by the will. * * * The order being to sell under the poAvers of the will, any sale made under it must of necessity be a sale under the poAvers of the will.” It does not appear that the deed was ever executed, or anything done in the McRae Case to bring the execution of the poAver Avithin the requirements of section 1052, as the will in that case authorized the executor to sell on credit, and not to make a deed until the purchase money was paid: and the bill, which was one for specific performance, went off because the proof failed to show payment of the purchase money. The bill in the case at bar avers that the petition was for sale for dirdsion, and does not aver that Mrs. Bell filed it as executrix; and, Avhile the statute provides that the deed must be made to the purchaser by the executor when a sale is made for division at her instance, it provides for a sale and- con-A’eyance by a commissioner, Avhen made at the instance of one or more joint OAvners. We therefore think that the averments of the bill negative such an execution of the powers of sale as was authorized by the will, and in conformity with out statutes on the subject, and did not cut off the remaindermen.

Until the life tenant did such an act as to defeat the remainder, the children of the testator were interested, and no proceeding for a sale for division would be binding on them, unless parties thereto.—Gayle v. Johnston, 80 Ala. 398; McQueen v. Turner, 91 Ala. 273, 8 South. 863.

The bill expressly negatives any adverse possession of the property.

The judge of the city court erred in dismissing the bill for want of equity,-and the decree must.be reversed, and the cause remanded.

Tyson, C. J., and Dowdell and McClellan, JJ„ concur.