Hazel v. Hagan

Wagner, Judge,

delivered the opinion of the court.

This was a proceeding in ejectment to obtain possession of certain real estate situated in Moniteau county. The right of the parties spring out of and are to be determined by construing the will of John W. Hughes, deceased. Hughes, previous to his death, made his last will and testament, and among other provisions the will contains the following clause: “4th. I will that my beloved wife raise my three youngest children, John C., Alexander J. and Susan Frances Hughes, and that they have a good common English education, and that they be subject to her control ,so long as she remains my widow or capable of managing them. Further, for the confidence I have and the obligation I leave resting on my beloved wife, I will and bequeath to her all my estate, both real and personal, except such as is disposed of in the foregoing part of this instrument, during her lifetime. I will that my executors proceed according to law to sell my personal property, or so much thereof as my beloved wife may think best for her convenience. I will that any of my real estate may be sold at any time for the comfort and benefit of my beloved wife and my three children left with her, at private or public sale, as my executors may deem most expedient.” The will designated the widow and Charles Hickox as executrix and executor. Hickox died before the testator, and the widow alone qualified and took upon herself the execution of the trust. After administering upon the estate and making final settlement, she sold some of the land belonging to the testator' at private sale, and the defendant claims under her grantee. The plaintiff derives title by a conveyance from some of the heirs of the testator. Mrs. Hughes, the widow, is dead.

The whole question arises upon the power contained in the will and the estate thereby conveyed. For the plaintiff it is contended that the will simply conveyed to the widow a life estate, with a power of selling the land on a certain contingency; but that, as she did not avail herself of that power and execute it while she was acting as executrix, her deed was insufficient to convey the fee ; whilst the converse of this proposition is maintained by the defendant.

*281 The testator declares in his will that any of his real estate may be sold at any time for the comfort and benefit of his wife and the three children left with her, at either private or public sale, as the executors may deem most expedient. Was Mrs. Hughe's incapable of making the sale and conveying the fee because she had ceased to be the executrix ? I think not. If the authority to sell be given as a trust to the same person named as executor, his resigning his trust as executor does not impair his power to sell. (Tainter v. Clark, 13 Metc. 220 , 227.) And if the power be accompanied by a personal confidence and trust in the donee or donees, he or they alone can execute it, nor can it pass to others; it must be executed by the persons named, unless an authority to substitute another be expressly given. (Cole v. Wade, 16 Ves. 27; Tainter v. Clark, supra.)

Where an estate is devised to one, with a power of disposing of it absolutely, there being no express estate for life limited to the devisee, he takes an estate in fee upon trust. The power of disposition gives the fee to the devisee, and a conveyance by him would pass it. The heirs, in such a case, can only control the conduct of the devisee through the agency of a court of equity. The authorities are explicit that the devise of an estate, with a power of disposal, will pass a fee. Here there is not -only a power of disposal for the benefit of others, but it was to be executed for the benefit of Mrs. Hughes herself. (Norcum v. D’Oench, 17 Mo. 98 ; Rubey v. Barnett, 12 Mo. 3 ; Sugd. Powers, 119.) The( will coupled a personal trust with a direct interest, accompanied with a power of disposition; and I have no doubt about the ability of the donee to impart a valid title and convey the fee. A discretion is given, and the property is to be sold at any time for the comfort and benefit of the beneficiaries, and at either private or public sale. The power of sale was a mere personal trust, not to be executed by Mrs. Hughes in virtue of her office as executrix, but at any time that she might deem it advisable to carry out the design and intent of the testator.

But it is further objected that the deed of conveyance made by Mrs. Hughes does not execute the power given in the will, and therefore the title did not pass. In Blagge v. Miles, 1 Sto. 426 , *282 Mr. Justice Story discusses at length the question as to what will amount to a sufficient execution of a power. He gives three classes as to what will be held as sufficient demonstration of an intended execution of a power: “First, where there has been some reference in the will or other instrument to the power; second, or a reference to the property which is the subject on which it is to be executed; third, or where the provisions in the will or other instrument executed by the donee of the power would otherwise be ineffectual, or a mere nullity — in other words, would have no operation except as an execution of the power.” He further remarks that these are not all the cases, and that it was always open to inquire into the intention under all circumstances; while he agrees that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. This subject was also examined by this court in the Collier will case, 40 Mo. 287 , where we held that a direct reference to the power, and in a manner so explicit as to leave no room for doubt as to the intention, was all that was required. (4 Kent’s Com. 335.)

We entertain no doubt about the conveyance made by Mrs. Hughes being a sufficient execution of the power contained in the will. The intention is apparent and unmistakable. She mentions the will and expressly refers to the provision empowering and authorizing her to sell the land, either at private or public sale, for her own comfort and benefit. No clearer indication of intention is needed.

The courts below decided in favor of the defendant rightfully, in my opinion, and I think the judgment should be affirmed.

The other judges concur.