Russell v. Kennedy

The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— The questions which are presented upon this record depend upon the proper construction of the will of Isaac Kennedy. It is very inartificially drawn. That part which relates to the land in controversy is as follows: “ And as to my wife Catharine, as she has helped to make the property, it is my will that she should have the Draper place of one hundred and fifty acres, and one hundred and twenty-five acres of land on the where we now live, and the Smith lot and Possession lot to have the use of in the family until July Ann and Clinton has their land set off to them, these other two lots during her natural life then to be divided amongst the children as she direct.”

• The first question is, which two lots are intended in the last clause. Four lots or places are mentioned in immediate connection, and the strict grammatical sense of the demonstrative pronoun “these” calls for the last-named or nearest. .When “this” and “that” refer to different things before expressed, “this” refers to the thing'last mentioned, and “ that” to the thing first mentioned: Webster’s Diet, ad verbwm. “ These,” however, is here qualified by “ other,” which seems naturally to make the clause relate to “ others” than those just mentioned. But besides this verbal construction, he had just limited the two last-named lots “ to have the use of in the family until July Ann and Clinton has their land set off to them.” He had made no express limitation as to the first two places. It seems most reasonable to conclude that when he proceeds to make another and different limitation for “these other two lots” — he means the two first-mentioned.

The second question is, what estate did Catharine Kennedy take in these two lots ? The language is' very express and unequivocal, “ during her natural life,” with a remainder over amongst the children as she directs. That is, an estate for life with a power of appointment amongst the children; not a general but a limited power. 1’t is a cardinal canon of construction, Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. It is true that there are other parts of this will from which it may possibly be inferred from the use of the words “ during natural life or lives,” that the testator had no very clear understanding of their legal signification or effect. As in the clause of devise to Polly Esther, “ for her and her children and her heirs during their natural lives.” So in the devise to Austin, “ which is my desire that it should be kept his natural life to make himself a home and his heirs after him.” We cannot import, however, any of these qualifying phrases into the clause in question. There is nothing whatever in it to indicate that the testator did not mean exactly what he said.

The third and last questioh is, whether Catharine Kennedy rightly exercised the power vested in her by her husband’s will ? There were in all nine children. By her will she devised the whole of,the homestead farm to one of them. We have not been furnished in either of the paper-books with a copy of the will of Catharine Kennedy, as we should have been. We have a mere extract containing the devise of the homestead to Clinton Kennedy, the youngest son. It is admitted, by the agreement filed, that Julia Ann Russell has seventy-five acres of the Draper lot set off to her under and in pursuance of the provisions of the will of Isaac Kennedy. Whether Catharine Kennedy made any and what disposition of the remaining seventy-five acres of the Draper place does not appear. We must assume that she made no disposition of them, but left them to descend, as in default of any appointment the whole would have gone among all the nine children. If, then, by her will she had expressly made the sameT division amongst the children as was practically accomplished by this only partial execution of the power — had she given the homestead to Clinton and the remaining half of the Draper place to all the nine children — it could not be denied that it would have been valid. She was to divide the two lots amongst the children as she pleased. She was not bound to divide each lot separately. No point has been or probably could be made that the shares of the nine children in the half of the Draper place would be so trifling and insignificant as to make the appointment illusory — a fraud upon the power.' The rule in courts of equity in England on that subject has been abolished by stat. 1 Wm. IV. c. 46.

At law it was clear that any share, however nominal or illusory, would satisfy the terms of the power: 2 Sugden on Powers 581. If this appointment by Catharine Kennedy had been, as it would seem that it might have been, by deed, leaving her free to execute the- power or not, as she pleased, as to the Draper place — there are cases in England which establish the validity of such an execution: Maddison v. Andrew, 1 Ves. 57; Bristow v. Warde, 2 Ves. Jr. 336; Wilson v. Piggott, Id. 351. In the last case Lord Alvanley, then Master of the Rolls, said : “ I admit that the true construction of this power is, that it is for the benefit of all the children, and an exclusive appointment wouldmot be conformable to it. /Supposing it so, the first question is, whether, though that would be the conclusion, the father might not by separate instrqments provide for each of the objects; and whether any appointment not comprising all is for that reason void. I am glad that I have been- furnished with the determination in Bristow v. Warde, which is an express authority, that under such a power, whether in the ultimate distribution each child must be included for some share or not, the party may exercise his power by separate deeds, which do not give to each child a share. If I understand the argument, it is that this power, if executed at all, must be‘executed in toto. I can understand it in no other way. Maddison v. Andrew has completely decided that,partial appointments may be made; and upon the cases determined, it is universally admitted that if a substantial share is given to each, it may be by different instruments at different times.” Mr. Sugden remarks, citing this case: “ The dying without any appointment, as to a part, was considered equal to an- actual appointment; and therefore a sufficient share being permitted to descend was deemed, tantamount to an appointment, so as to prevent any question of illusion2 Sugden on Powers 686. It would not be easy to draw a distinction between that case and this. Had the homestead been the only subject of the power, can it be doubted that Mrs. Kennedy could have directed 60 acres of it to be set off as a farm for Clinton, leaving the residue to descend as in default of appointment ? There being two lots to divide among nine, she executes the power as to one of the lots by giving it to one, and failing to execute the power as to the other, it descends to all the children. In the words of Mr. Sugden, “ it is tantamount to an actual appointment of that lot to them.” It will be noticed that this opinion proceeds upon the assumption that the power in question was not a power of selection but of division or distribution merely, and bad she undertaken to give both lots to one exclusively, the appointment would have been inoperative and void.

Judgment affirmed.