Gildersleeve v. Lee

BROWN, J.

The pivotal point in this case is the right of the plaintiff to convey a title in fee to the land devised to him by his wife, Pearl D. Gildersleeve. The power of plaintiff to convey a fee-simple estate depends upon the terms of the will.

1. In construing a will, its provisions must be considered together; the words are to be taken in their usual and ordinary sense, unless it appears that they are used in a technical or a special sense, or unless when applied to the subject matter they have a technical or special meaning; and the intention of the testator is paramount and controlling, so far as that purpose is within the law.

2. It is but the statement of a commonplace rule of law to observe, in the interpretation of the provisions of a will, that the intention of the testator as therein expressed must prevail. The statute of this state commands that all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true interests (intent) and meaning of the testator in all matters brought before them: Section 10124, Or. L.; Moreland v. Brady, 8 Or. 303 ( 34 Am. Rep. 581 ); Shadden v. Hembree, 17 Or. 14 ( 18 Pac. 572 ); Jasper v. Jasper, 17 Or. 590 ( 22 Pac. 152 ); Portland Trust Co. v. Beatie, 32 Or. 305 ( 52 Pac. 89 ); Love v. Walker, 59 Or. 95, 103 ( 115 Pac. 296 ); Kaser v. Kaser, 68 Or. 153, 158 ( 137 Pac. 187 ); Beakey v. Knutson, 90 Or. 574 ( 174 Pac. 1149 , 177 Pac. 955 ); Boehmer v. Silvestone, 95 Or. 172 ( 174 Pac. 1176 , 186 Pac. 26 ); Bilyeu v. Crouch, 96 Or. 66, 69 ( 189 Pac. 222 ).

The controlling rule in ascertaining the meaning of the will of Pearl D. Gildersleeve to which all technical rules of construction must give way is, to give effect to the true intent and meaning of the testatrix *585 as the same may be gathered from the whole instrument; and in arriving at that intention the relation of the testatrix to the beneficiaries named in the will and the circumstances surrounding her at the time of its execution are to be taken into consideration and the will read as nearly as may be from her standpoint, giving effect, if possible, to every clause and portion of it.

It has frequently been held by the courts and stated by text-writers that a testator’s intention is to be collected from the whole will taken together, and not from detached portions alone, for as it is figuratively said, the meaning must be gathered from the body of the will, or, to use another familiar expression, from the four corners of the instrument: Schouler, Wills and Administration, § 468; 40 Cyc., pp. 1388, 1389, and cases cited.

3. It is the expressed intention of the testatrix, that which her will imports, and not any conjectural intention of hers outside of the will which might or might not be capable of demonstration, that the court relies upon; and, having ascertained that expressed intention to its satisfaction, the tribunal investigates no further. Its conclusion may give words their technical or literal import, or may not; it may give expressions their ordinary and grammatical sense, or may not; but the meaning settled upon, if settled intelligibly, is that which the words and language of the whole will properly interpreted convey per se: Section 571 and note 1, Schouler, Wills and Administration; 40 Cyc., pp. 1389, 1390.

4. Did the will confer upon plaintiff power to sell and convey a fee-simple title to the land in controversy, without affecting his life estate therein? This question must be answered in the affirmative. An *586 absolute power of sale or disposal attached to an express life estate will not enlarge it into a fee, although the power is to convey a fee: 40 Cyc. 1626, 1627. The rule is this: Where an estate for life is expressly given, and a power of disposition is annexed to it, in such case the fee does not pass under such devise, but the naked power to dispose of the fee. But it is otherwise in case there is a gift generally of the estate, with a power of disposition annexed. In this latter ease the property itself is transferred: Beasley, C. J., in Borden v. Downey, 35 N. J. L. 74, 77.

5. The right of disposition is not property, but a mere authority. An absolute power of disposal is not inconsistent with an estate for life only: Melton v. Camp, 121 Ga. 693 ( 49 S. E. 690 ).

Chancellor Kent, in Jackson v. Robins, 16 Johns. (N. Y.) 537, says:

“We may lay it down as an incontrovertible rule that, where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and _ naked gift _ of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases.”

Based upon a multitude of authorities, we quote the following from a text-writer:

“It is a general rule of law that a power to dispose of the fee annexed to a devise for life does not enlarge the estate given. Where the devisee is given a life estate only, a later clause granting such devisee the power to dispose of the fee is governed by the former provision, and tbe express limitation for life will con *587 trol the operation of the power so as to prevent it from enlarging the estate first devised.” 2 Commentaries on Wills, Alexander, § 973, and extensive list of authorities cited under note 88; likewise, authorities cited in note, 9 Ann. Cas., at page 949.

A gift of power to dispose of the whole estate, annexed to an estate for life with remainder over in fee to a third person, confers upon the life tenant plenary power to convey the fee upon the terms of the power granted: Grace v. Perry, 197 Mo. 550 ( 95 S. W. 875 , 7 Ann. Cas. 948).

6. The rule of construction established by the great weight of authority is, that where an estate is given for life in definite terms, an added power of disposition does not enlarge the estate into a fee simple. This rule, of course, seeks to give effect to the intention of the testator, but regards specific terms such as “for life,” “during his or her natural life,” etc., as showing what estate the testator intended to give: Note, 9 Ann. Cas. 947, and the many cases there cited.

There is a minority rule prevailing in some states that the devise of an estate for life, coupled with an absolute power of disposition, either express or implied, gives the devisee an estate in fee: See list of authorities sustaining the minority rule, 2 Commentaries on Wills, Alexander, p. 1415, note 89.

In Winchester v. Hoover, 42 Or. 314 ( 70 Pac. 1035 ), this court has approved the legal proposition stated by Mr. Justice Field in Brant v. Virginia G. & Iron Co., 93 U. S. 326 ( 23 L. Ed. 927 , see, also, Rose’s U. S. Notes), that:

“Where a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make, unless there are words clearly indicating that a larger power was *588 intended: Bradley v. Westcott, 13 Ves. 445; Smith v. Bell, 31 U. S. (6 Pet.) 68 ( 8 L. Ed. 322 ); Boyd v. Strahan, 36 Ill. 355 .”

It was held in Winchester v. Hoover, 42 Or. 314 ( 70 Pac. 1035 ), that:

“Where there is a devise of real property for life in express terms, with power of disposal, the power does not enlarge the estate into a fee, and the devisee can convey only such estate as he received, unless there are words clearly indicating that a larger power was intended.”

In the case of Savage v. Savage, 51 Or. 171 ( 94 Pac. 184 ), this court, speaking through Mr. Chief Justice Bean, said:

“Where there is a general devise without any specifications as to the estate devised, and absolute power of disposal, the donee may convey a title in fee although he may be required to account for the proceeds as a trustee.”

7. In the case at bar, Pearl D. Gildersleeve clearly indicated that the devisee is empowered to convey a greater estate than he received. The estate devised is plainly specified as a life estate, and the power of disposal is absolute. Testatrix said, in devising her husband his life estate in the land, that:

“ All the rest, residue and remainder of my property, real, personal and mixed, of whatever the same may consist or wherever the same may be situate, I give, devise and bequeath to my husband, Prank A. Gildersleeve, during his natural lifetime, the remainder over at the time of his death to go to my said children, share and share alike.”

Manifestly, it was her intention, after providing for her three children in clause 5 of the will by bequeathing to each of them one dollar, that her property, personal and real, should be bequeathed and *589 devised to her husband during his lifetime. The language of the testatrix establishes that she intended to devise to her husband a life estate in her property. She contemplated and said that the remainder over at the time of his death should go to her children, share and share alike. She then conferred upon him a power of disposal as follows, by stating that it was her intention—

“That my said husband shall have the full management and control of all of my said property and to that end he may sell and convey any and all of the property in the usual course of business, the same as I could or would do if personally present.”

These words clearly indicate that the testatrix intended to empower her husband with full authority to sell all of her property, which included the land, and to transfer the same title that she could have conveyed if personally present. That title is a fee-simple title.

The demurrer should have been sustained.

This ease is reversed and remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

Benson, J., not sitting.