Prudential Investment & Development Co. v. Hilton , 153 Ga. 415 ( 1922 )

Hill, J.

(After stating the foregoing facts.)

The single question in the case is whether the fee-simple title sought to be sold by Thomas Hilton to the Prudential Investment & Development Co. is “good and marketable.” If it is good, the court below was right in decreeing specific performance. The deed of Mrs. Gilson purported to convey “ all the right, title, and interest of the party of the first part in and to the premises and appurtenances herein above described.” It is contended by the plaintiff in error that under this language in the deed it conveyed a life-estate only. But it must be remembered that under the will Mrs. Gilson had the “ full power and right to sell and dispose of, use and appropriate the same, or any part thereof, to her own use and benefit, as fully as she could do if she were the sole and unconditional owner thereof, excepting only the right of disposal by her last will and testament.” This language is broad enough to confer upon Mrs. Gilson the power to sell and execute the fee-simple title to the property. The case of Stark v. Chambers, 140 Ga. 601 (79 S. E. 535), is in point. There-the testator bequeathed and devised to his wife all of his estate, real and personal, “ for her support and control during her lifetime.” After the death of his wife the testator provided that he “wanted” what property was left, real or personal or both, divided and sold and the money equally divided among his children, after paj'ing his stepson $100; and by the fourth item of his will the testator devised as follows: “ I direct and will that after my death that my said wife, Vina Moats, take charge of all the property mentioned in this my last will and testament, without any appraisement, and use it as she needs for her comfort and support.” It was held: “The will conferred upon the widow of the testator, during her life, power to convey in fee any part of the estate, where necessary for her support; and where in order to obtain a support she sold the land for its reasonable value, and executed to the purchaser a deed conveying the land in fee simple under such power, the purchaser was not subject to be evicted after her death by the testator’s administrator de bonis non cum testamento annexo.”

The only restriction in the will under consideration as to the power of alienation is the right of disposal by her last will and testament. Otherwise Mrs. Gilson was given the full -power and right to sell and dispose of the property in controversy, “ as fully as she could do if she were the sole and unconditional owner thereof.” If the language in the will construed in the Starlc case authorized the conveyance in fee, certainly the language contained in the will under review would confer that power. The testators in both cases first devised life-estates, but with power to convey. The power in the instant case was exercised by the wife, and we tffink that it was sufficient to authorize her to convey the fee. The consideration certainly was ample, as showing that both the seller and the purchaser contemplated that the fee, and not merely the life-estate, was to be conveyed; for the undisputed evidence is that at the time of the execution of the deed Mrs. Gilson was seventy years of age, was bedridden and had been for years; and assuming that both the seller and buyer acted in good faith (and no question as to that is raised in the record), surely no purchaser would give. $10,000 for the property in controversy if he were buying merely a life-estate of one who is shown to be of the age and in the state of health that Mrs. Gilson was. Indeed it is admitted that $10,000 is a fair valuation of the property in controversy. It appears, therefore, that Mrs. Gilson received full value for the land; and while she conveyed by quitclaim deed, yet where from the whole deed, including the consideration, it appears that she 'was conveying all that she had a right to convey, we are of the opinion that under the power contained in the will she had the right to convey, and that in the deed she did convey, a fee-simple .title to the land in controversy. Every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance. Civil Code (1910), § 3659; and see Mahoney v. Manning, 133 Ga. 784 (66 S. E. 1082); Nort v. Healy Real Estate &c. Co., 136 Ga. 293 (71 S. E. 471). In the Mahoney case, Mr. Justice Evans in discussing the case of Holder v. American Investment Co., 94 Ga. 640 (31 S. E. 897), where it was held that the conveyance in that case was effective to pass the owner’s one-half undivided interest, together with her life-estate, but no more, said: “ It will he observed that the court took pains to state that the conveyance made no mention of the will, or that the maker was executrix, and made no reference whatever to any power of sale derived from the will. In other words, there was nothing in the instrument to unequivocally disclose that it was intended as an execution of a power.” In the instant case the vendor does mention the will, and also the fact that the maker was executrix under the will. If she had intended not to execute the power contained in the will, but was merely conveying her life-interest under the will, there would have been no necessity for mentioning either the will or that she was executrix. But she did both, thus clearly indicating that she was not only conveying her individual interest, but was exercising the power contained fii the will to convey the fee. Mr Justice Evans in the case just referred to further said, after citing a number of cases where no reference was made to the power, and where it was held that the power was not exercised: “ We take these cases to mean, if there had been a reference to the conveyance conferring a power, that such reference would evince an intention to execute the power, and would be so construed. So that we conceive the rule of law, as expressed in these cases, to be, that in order for an instrument to be effective as an execution of a power, where the maker is the owner of an interest in the land conveyed, and also of a power to convey the fee, the recitals in the instrument must either expressly refer to the power, or by necessary implication clearly indicate that an execution of the power is intended.” As stated above, we are of the opinion that where the maker of the deed has both referred to the will containing the power to dispose of the fee and also to herself, as executrix under the will,, the necessary implication is that she intended to execute the power, and consequently to convey the fee.

Erqm the foregoing we conclude that the trial judge rightly held that the maker of the deed intended to execute the power conferred in the will' of her husband; and in entering a decree for specific performance as set oiit therein.

Judgment affirmed.

All the Justices concur.