Wilkinson v. Buist , 23 W.N.C. 311 ( 1889 )

Opinion,

Mr. Justice Clark:

The controlling question in this case is upon the true construction of tho last will and testament of llobert Buist, the elder, deceased. The power of sale to the executors, apart from the other provisions of the will, is framed in the most general terms; it is wholly without limitation as to time, and taken alone was exercisable iu their discretion “ at any time ” after the testator’s decease. But although the time for its exercise is not limited by any words used in its creation, the limitation to which it is really subject may appear upon a consideration of the testator’s general design in the disposition of his estate, as shown by the will; for although the power was to be exercised “ at any time ” in the discretion of the executors, yet this may be ascertained tp mean, at any time within some period fixed in the testator’s mind, but not fully expressed, ascertainable however from the manifest general scheme and purpose of his will. Whether this was a power which the executors might exercise in the lifetime of the widow, or at any time afterwards, is therefore a mere question of intention, to be ascertained from a study of the entire instrument by which the power was created.

It is plain that the first and principal subject of the testator’s solicitude was his wife. After providing for the payment of his debts, etc., he gave to her the furniture, provisions, etc., on hand, and directed his executors to pay to her, semi-annually, for and during the term of her natural life, the entire income and interest of the residue of his personal estate, and then in the fourth clause devised to her, directly, for life, all his real estate. The fifth clause contains the power of sale, which gives rise to this contention; it is in the following words: “ I authorize and empower my said executors, and the survivors or survivor of them, at any time after my decease, in their discretion, to sell and convey, in fee simple, to any person or persons, for such price or prices as they shall deem sufficient, all or any portion of my said real estate whatsoever, and wheresoever situate.”

Although this pqwer, as we have said, is in the most general terms, yet the testator’s purpose in creating it is, we think, clearly disclosed in what follows. The testator provides, that, “the proceeds of all such sales of my real estate, whenever made, shall be held by my executors, in trust, for the uses and purposes declared in this my will, in relation to the said real estate ; ” that is to say, the proceeds shall be held for the use of his wife, the interest and income thereof payable to her, during her life. In confirmation of this, the testator further provides, as follows: “ And I further direct that all investments and re-investments of the proceeds of such" sales, as well as of my personal property and estate, shall be made in first mortgages of improved real estate, situate in the city of Philadelphia, in the public loans of the state of Pennsylvania, or of the United States, of the city of Philadelphia, or in such other securities as may be authorized by law; ” with power to change the investment, etc.

These provisions of the will plainly show that the testator had in his mind a period of time, within which this power to sell was to be exercised, that is to say, within the lifetime of the widow; the proceeds, all the proceeds of the sales, were to be held in lieu of the land, and to be invested with the personal estate for her use, and this implies of course that the sales were to be made in her lifetime.

This theory of the will is further established, moreover, by the fact that in the sixth clause, the testator provides that “ immediately ” after the decease of his wife the whole of his real and personal estate, “ including the proceeds of all such real estate as shall have been sold by his executors in the lifetime of his wife, shall be divided into six equal parts,” and go to his children and grandchildren, as therein directed.

It is clear that these sales were not for the payment of debts, as the proceeds were not to be so applied; they were not for the purpose of division or distribution, as the division was not to be made in the widow’s lifetime, but “immediately” after her decease, upon the precise footing of the estate, as it then .existed. The manifest design of the testator was, that in the lifetime of the widow the best interests of his estate should be protected and promoted by his executors, one of them being his widow, the life-tenant, the other two, his children, devisees in remainder; that the real estate should be subject to sale, in their discretion, at any time during the life of the widow, but at her death the whole estate, as it then existed, should be distributed to those entitled.

Under this construction of the will, it seems unnecessary to decide what would be the effect of an unlimited power, or rather what the effect of a determination of the life estate, without more, upon such a power. A power of sale without limit would doubtless be bad, under the rule against perpetuities, and a testator will not be presumed to have intended anything so absurd. Such powers, when framed in general terms, may therefore in some cases, as stated by Sir George J essel, in Peters v. Lewes etc. IL Co., L. R. 18 Ch. D. 429, be limited by the limitations of the settlement contained in the will. But this is merely upon the presumption that the testator so intended, for in the very case cited, although the life estate had actually terminated, the power was upheld, it appearing from the will that the testator had created it for the purpose of division. Upon the same principle, although the power may be expressed in the most general terms, yet if the purpose of its creation appears, and that purpose has ceased, there can ordinarily be no further execution of the power, as it will be presumed that the testator did not intend that the power should be exercised after the accomplishment of that purpose: Wheate v. Hall, 17 Ves. 86; Wolley v. Jenkins, 23 Beav. 53; Swift’s Appeal, 87 Pa. 502.

It is the testator’s intention, with respect to the duration of a power, which governs in all cases. When the limitations contained in a settlement by will have expired, and absolute interests in fee have vested in possession in persons sui juris, it may well be supposed that the testator intended that a power of sale will not after that be exercised; but if, on the construction of the instrument, it appears otherwise, and that the testator intended it should be afterwards exercised, the power will of course be upheld, unless it is obnoxious to the rule against perpetuities, or the cestuis que trustent have elected to take the property as it stands: In re Cotton’s Trustees, etc., L. R. 19 Ch. D. 624.

On the other hand, as was said by Sir Edward Fey in the case just cited, “It is well ascertained that when there is a settlement of real estate, either by will or by deed, and the settlement ultimately carries the land to a person entitled in fee simple, and there are powers couched in general words and without limitation as to time, which are nevertheless obviously intended to be exercised only during the subsistence of the intermediate limitations, there, the moment the estate in fee is vested, the powers are at an end, because it was the intention of the settlement that they should subsist only during the intermediate limitations.” The vesting of the estate absolutely in the persons ultimately entitled is an indication, merely, that according to the true construction of the settlement, the intention of the settlor was that the powers would, in that event, come to an end. To the same effect, although the cases are not wholly similar, is our own case of Kaufman v. Hollinger, 4 W. N. 27.

The validity of the title here, as stated by the counsel for defendant in error, depends upon the construction of this will; it is either certainly good or certainly bad, as the law may be determined one way or the other. It is not a question, therefore, of a doubtful title dependent upon disputed facts. If we are right, however, the title is defective, and the plaintiff, Robert Buist, is not entitled to recover.

The judgment is reversed.

Me. Justice Mitchell dissents from the interpretation given to the will in this case.