Livingood v. Heffner ( 1888 )

Opinion by

Mr. Justice Clark:

The testator, without doubt, intended to give to the executor of his last will and testament a power to sell his real estate; this power was subject to the limitation to be implied from the particular provisions of the will; that the real as well as the personal estate was for the use and support of his widow, and was to be occupied and possessed by her during her widowhood. If at any time during that period, however, she should signify her desire to have the land sold, the testator intended that the executor should comply with her request, and thereafter pay to her the interest of the proceeds. These words of the will are capable, perhaps, of being construed in a permissive sense only; but as the widow was the principal subject of the testator’s solicitude, and the provision was wholly in her interest, in the event of her request and his refusal, we think the execution of the power would have been enforced. The third clause of the will is as follows:

“I hereby appoint and empower my trusty friend, Joseph Woomer, my executor of this my last will and testament, and empower him to give a deed-for my real estate, the same as I myself could have done if living.”

This clause must of course be construed in connection with the whole will. It cannot be said, however, that it refers exclusively to the provisions which precede it, and that it can have no significance beyond that. It is a general power to convey the real estate; it is restricted only by the particular provisions of the second clause, to wit: that the widow, during her widowhood, was entitled to the occupation and possession of the land, and it was not to be sold unless she desired that it should be; in which case, says the testator, “my executor may sell the same.” Subject to this limitation the executor would appear to have ample power to convey the land, at his discretion.

Except as already stated there was certainly no positive direction to sell; it may be that there was no technical conversion of the realty into personalty; this we are not called upon to decide; the question here is one of title, not of distribution; whether there was or was not a conversion, it is unnecessary to say — if upon a proper construction of the will, the executor was authorized to sell the land.

It is of no consequence that the sale was made at the request of the widow, after her remarriage; the power was exercised by the administrator cum testamento annexo, by virtue of his office under the directions of the will (the executor having renounced his right), and, if he had power independently of the widow, her request was superfluous and could not invalidate his act.

Upon an examination of the whole case we are persuaded that although the testator did not intend to give any absolute direction to sell, he did intend, subject to the restriction stated, to confer a general power; the whole scheme of the will would seem to indicate this purpose of the testator’s mind.

We are of opinion, therefore, that the plaintiff below is competent under the will to vest in the defendant the title to the premises in question; the judgment is, therefore, reversed and judgment is now entered on the case stated, in favor of the plaintiff, for the sum of $947, without costs, as stipulated, by the parties.