Hammett v. Markham , 128 Miss. 39 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

The appellee, Mrs. Markham, by her bill seeks to cancel as a cloud upon her title the claim of the appellants to certain lands in Warren county. In this proceeding we are called upon to construe the will of Mrs. Evelyn Light-cap, who died in 1878. The will is short and reads as follows :

“I make and publish this my last will and testament the same being wholly Avritten by myself.

“(1) I Avill and desire that my three daughters, Florence, Helen and Alice shall have the use and enjoyment during their lives, share and share alike, of the rents, issues and profits of my Magnolia Hall property, my town •property having been disposed of by deed.

“(2) Upon the death of any of said children the girl children of said decedent to be vested with absolute title to one-third interest in said property.

“(3) I hereby name my daughter Alice as the executrix of this my will and desire that no bond shall be required of her by any court for the discharge of this trust.

“(4) Upon the happening of the death of either of my said children Florence or Helen, I hereby vest my said executrix with full power and authority to sell said real estate at public or private sale; the proceeds to be applied one-third to go absolutely to the female children or child of my said deceased child the remaining two-thirds to be held in investment by my said executrix, and the property to be divided between her and her reinaining sister. And at the death of either of the survivors the said proceeds to be finally and absolutely divided between the executrix and the females of the other of my deceased child.”

Mrs. Lightcap’s three daughters, Florence, Helen, ánd Alice, survived her. Both Florence and Helen had girl children. Alice has never had any girl children, and has a boy. It is agreed that she will have no girl children, though she is still alive. After the death of Florence her daughters filed a bill to partite the real estate. In that proceeding the land was partited, a portion in fee simple was allotted to the children of Florence, and a portion to Helen (the appellant Mrs. Hammett) for life, remainder in fee to her daughter, and a portion to Alice; but the court expressly declined to say Avhether Alice only owned a life interest in or a fee simple to her portion. Possession was taken by these parties to their respective shares of the property. The appellee by conveyances has acquired the title of Florence and Alice. Alice and her son for valuable consideration conveyed by special warranty deed the land allotted to Alice in the partition suit to the husband of appellee, who conveyed it to appellee. Alice and Helen are still alive.

It is the contention of the appellee that item 4 of this will vested in Alice,, the executrix, a fee simple title to one-third of this property, upon the death of either of her sisters, and that therefore the appellee has a fee-simple title to the interest of Alice and Florence which she has purchased. The learned chancellor so held, and granted the relief prayed for.

It is the contention of the appellant that Alice was either vested with a life estate, or given the rents, issues, and profits of one-third of the estate during her life, with remainder in fee to her female children, and that, since she had no female children, the fee to her one-third is un-disposed of under the will, and goes to the heirs at law of Mrs. Lightcap under our statute of descent and distribution, and that appellants are such heirs, and therefore have an undivided one-third reversionary interest in fee in the property allotted to Alice.

It will be noted that item 4 of the will vests in Alice, the executrix, the power of sale of this property upon the death of either of her sisters, but that by this item she is not ordered or required to do so, but is merely vested with a discretionary power of sale. This power was never exercised. While courts of equity will aid the defective execution of powers, they will never aid the nonexecution of them. “It is an immutable rule that a nonexecution shall never be aided.” Sugden on Powers, 892; 1 Story’s Equity Jurisprudence, 194, section 171; Mitchell v. Denson, 29 Ala. 327, 65 Am. Dec. 403.

Neither can the partition proceeding, nor the special warranty deed of Alice to the property allotted to her thereunder, be treated as an attempt to execute this power of sale. It is perfectly apparent that in neither instance was she attempting to do so. In her special Avarranty deed she was merely attempting to convey her individual interest, devised under the will and allotted to her| in the partition. suit. The power of sale given hér under the will to sell the entire place was not exercised by ber; on tbe contrary, sbe permitted a division in kind of tbe property and was individually allotted her share in this property. By this partition proceeding sbe permitted the power of sale given her under the will to be annulled, and took her individual estate.

“The rule is that, Avhere one has both an estate in and a power over property, and does an act which may be referred either to the execution of the power or the exercise of his rights as owner, it will be presumed that the act is done by reason of his ownership; but if a conveyance is made, which cannot have full effect except by referring it to an execution of the power, though some estate would pass by reason of his ownership, yet because the conveyance can only have full effect by referring it to the power, this will be done.” Baird v. Boucher, 60 Miss. 326 ; Mitchell v. Denson, supra.

The rule upon this question is thus stated in the case of Lee. v. Simpson, 134 U. S. 589, 10 Sup. Ct. 637, 33 L. Ed. 1046:

“The question of the execution of a power is very fully discussed by Mr. Justice Stout in Blagge v. Miles, 1 Story, 426. The rule laid down in that case is that if the donee of the poAver intends to execute it, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative; that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation, but if it be doubtful, under all circumstances, then that doubt will prevent it from being deemed an execution of power; and that it is not necessary, hoAvever, that the intention to execute the power should appear by express terms or recitals in the instrument, but it is sufficient that it appears by words, acts or deeds demonstrating the intention. Judge Stoky states, as the result of the English authorities, that three classes of cases have been held to be sufficient demonstrations of an intended execution of a power: (1) Where there has been some reference in the will, or other instrument, to the power; (2) or a reference to the property, which is the subject on which it is to be executed; (3) or where the pro-lusion in the will or other instrument, executed by the donee of the power, would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation, except as an execution of the power.”

The deed of Alice was not executed in accordance with the power of sale. Since the power of sale was never executed in accordance with item 4 of. the will, it is unnecessary for us to say what effect a sale of this property under this item would have had upon the title to the proceeds of sale. We therefore look to the other items of the will to see what disposition of the property was made by the testatrix.

Under item 1, each of hpr three daughters is given an equal .share in the rents; issues, and profits of the plantation during their lives. This is perfectly plain; Under item 2, upon the death of any of these three daughters, her girl children are vested with a one-third fee-simple title to the property. Florence is dead, and her girl children under this will were vested with a fee-simple title to the property. Helen has a girl, and is still living. In the partition proceeding the court decreed that Helen owned a life interest in the share allotted to her, with remainder in fee simple to her daughter. Alice, is only given the rents, issues, and. profits during her life. Since she has no female children, and cannot have any, this one-third remainder is undisposed of by the will, and consequently goes to the heirs at law of the testatrix who were living at the time of her death. This fee is neither expressly nor impliedly devised under the will. Bank & Trust Co. v. Cortright, 122 Miss. 75, 84 So. 136 ; Jones v. Carey, 122 Miss. 244, 84 So. 186.

We are.not given the names of all of the heirs at law of Mrs. Lightcap who were living at her death, but it is certain that Mrs. Hammett, the appellant, is one of them. Under the laws of descent and distribution she is entitled to an undivided reversionary interest in fee in the part alloted to Alice.

The decree of the lower court is reversed and the bill dismissed.

Reversed and bill dismissed.