author: BRACE, C. J.

text:
    PATRICK F. GRACE, Appellant, v. PERRY et al.
    In Banc,
    June 20, 1906.
    1. WILL: Interpretation: Rule. The controlling rule in construing wills, to which all technical rules of construction must give way, is to .give effect to the true intention of the testator as the same may be gathered from the whole instrument, if not violative of some established rule of law; and in arriving at that intention, the relation of the testator to the beneficiaries named in the will and the circumstances surrounding him at the time of its execution are to be taken into consideration, and the will read as near as may be from his standpoint, giving effect, if possible, to every clause and portion of it, and to that end, if need be, words may be supplied or omitted, and sentences transposed.
    2. -: ........ — : -: To Children and the Heirs of Their Bodies: Cross-Remainders. An old man possessed of a considerable property, with a wife and two children aged eight and ten years, gave by will, drawn by himself without the aid of counsel, the homestead to his wife and validated an antenuptial agreement which provided an annuity to her of $800, and then proceeded: “All the residue of my estate, personal and mixed, X give and devise equally to my children, James S. Dougherty and Augusta Lucy Dougherty, during their natural lives, respectfully, with remainder to their heirs or his or her heirs of their body, but with full power and authority to each of my said children after their majority. to dispose of the absolute title, and on the death of either the survivor to inherit. But should both my children die without issue of their body, then my grandnephew, Charles P. Loker, shall inherit all my property.” Held, that the leading and dominant idea of this residuary clause is that the residue of his estate was to go to his children in equal shares for life, with full power in each of them after reaching majority to dispose of his or her share of the estate in fee simple; second, the balance of the clause is meant to provide for a devolution of those shares in case of the death of the children or either of them before they arrive at their majority or before they had disposed .of their shares; third, it was the evident intention of the testator that the remainders limited upon the respective life estates given to the two children were subject to the power given the children to dispose of their shares absolutely; and, fourth, the execution of the power of disposal by one of them after he reached his majority, defeated the remainder in his heirs, and conveyed to the grantee the absolute title.
    3. -: Remainder: Power of Disposal. A power of disposition of the fee added to a life estate is not repugnant to the life estate or to the remainder over. If not exercised, it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of.
    4. -: Power of Disposition: General Sale: Mortgage. Generally a power to sell does not include a power to mortgage, but a “full power and authority to dispose of the absolute estate in fee simple title,” is general and unhampered as to the mode of disposition, and gave to the donees authority to either sell or mortgage.
    5. --: Reference to Power In Deed. Where the power. was.to dispose of “the absolute estate in fee simple,” and by the deed the donee conveyed “the absolute estate in fee simple,” it will be held that the deed was made in execution of the power.
    Appeal from St. Louis City Circuit Court. — Hon. Wm. Zachritz, Judge.
    Reversed and remanded.

      McKeag & Cummings for appellant.
    The power of disposal vested in James S. Dougherty, Jr., of his interest in the property is unlimited at his discretion, and the very fact that he added to the words which make the deed convey a fee simple title the words “the absolute estate in fee simple title in and the undivided half of,” etc., plainly shows that it was not his life interest he intended to dispose of, but his absolute estate in fee simpl® in this deed of trust; he gives full power and authority upon condition that these notes specified in the deed of trust are not paid to sell all he had mortgaged and convey a fee simple title to the purchaser, which was accordingly done, and James S. Dougherty nor his wife, nor any other person claiming through him, is raising any objection to this sale or to the plaintiff’s title to the one undivided one-half of the property described. Campbell v. Johnson, 65 Mo. 439; Wead v. Gray, 78- Mo. 64; Boyer v. Allen, 76 Mo. 498. The word used in this will, “dispose,” is much broader than the word “sell.” There is no limitation to the manner of disposal nor precedent conditions; that was discretionary with James S. Dougherty, Jr. He used that discretion and no court will interfere, and, as we have already stated, he nor no one claiming under him is asking for the intervention of the court. We submit he could convey as a gift, mortgage, sell outright or give a power of attorney to sell and convey, or direct and empower a trustee upon a certain contingency, such as in the deed of trust in the record, upon the failure to pay the notes described therein, to sell and convey, which was done and executed in this instance — by making a conveyance of the fee simple title by the trustee. Phelps v. Harris, 101 U. S. 380; Fling v. Goodall, 40 N. H. 219; Ryland v. Bank, 151 Mo. 8.

      J. L. Mvunis, amicus curiae.

    (1) The manifest intention of the testator as expressed in his will was to devise to each of his children a life estate in the undivided one-half of the residue of his estate, with power to dispose of the fee to such half after attaining majority, and the remainder to the survivor for life with like power contingent on the death of the other without issue, but if both children have issue, then with remainder to such issue per stirpes; if only one of the children has issue, with remainder to such issue; but if both of the children die without issue, then with remainder on the death of the survivor to Loker. Of course, the remainders are contingent on the failure of the children to exercise the power to dispose of the fee. (2) There are no legal obstacles to the enforcement of the will, as thus interpreted. (3) The power to dispose of the fee vested in the first takers included the power to revoke the devise to the issue of the first takers and to the grandnephew. 4 Kent, p. 360; 1 Sug. on Powers (3 Am. Ed.), p. 288, sec. 8. (4) The devise to the issue of the first takers, and on failure of such issue, to the grandnephew, is an estate limited in default of the exercise of the power given to the first takers. 2 Sug. on Powers (3 Am. Ed.), p. 29, sec. 3, and p. 184, sec. 1. (5) The question is no longer debatable in this State. Russell v. Eubanks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Greffet v. Willman, 114 Mo. 106; Evans v. Polks, 135 Mo. 397; Underwood v. Cave, 176 Mo. 1; Garland v. Smith, 164 Mo. 1.
    P. A. Griswold for respondent, Augusta Lucy Dougherty Perry.
    (1) The appointment of Thomas M. Grace as trustee in lieu of Mauvais did not comply with the conditions set forth in the deed of trust under which appellant claims and hence was void. Perry on Trusts, sec. 287; Guión v. Picket, 42 Miss. 77. (2) Plaintiff cannot excuse his failure to offer in evidence at the trial a certain quit-claim deed from Dougherty to Grace, on the ground that the decision of the court a month aftewards was a surprise to him. Pretwell v. Laffoon, 77 Mo. 30; Boyce v. Mooney, 40 Mo. 106; Hanley v. Blanton, 1 Mo. 49; 3 Graham and Waterman on New Trials, pp. 874-944. (3) Plaintiff cannot lug into this case, as newly-discovered evidence, a deed which he had in his possession at the trial and failed to offer, by attaching same to a motion for a new trial. State v. Soper, 148 Mo. 240; State v. Miller, 144 Mo. 30; State v. McLaughlin, 27 Mo. Ill, citing the rule stated in Berry v. State, 10 Ga. 527. (4) Plaintiff has no grievance because the trial court admitted his evidence subject to defendants’ objection. The party whose objection was held in suspense might complain but not his adversary. (5) Where the grantor has an estate that will pass without execu-, ting the power, and the instrument does not contain a particular reference to the power, the law will presume that he intended to convey such estate, and no more. Pease v. Iron Co., 49 Mo. 127; 1 Sugden on Powers, 356, note 1; 2 Washburn on Real Property, sec. 1717; 4 Kent’s Com., p. 335. (6) The power of disposal created by the words “with full power and authority to dispose of the absolute estate in fee simple title” did not confer on defendant, Dougherty, the power to mortgage his estate, but should be construed as a power to sell. Matter of Hesdra, 2 Connoly 519; Lessee of Williams v. Veach, 17 Ohio 181; Hunt v. Hunt, 11 Nev. 449; Stokes v. Payne, 58 Miss. 618; Matter of Davids, 5 Dem. 16; Matter of Davids, 5 Dem. 254; Sires v.’Sires, 43 S. C. 271. (7) Power to sell does not include a power to mortgage. Price v. Courtney, 87 Mo. 395; Wood v. Kice, 103 Mo. 329; Farwell on Powers, p. 457; 2 Wash-burn on Real Property, sec. 1690; 4 Kent’s Com. p. 331; 1 Jones on Mortgages, sec. 129. (8) Where the courts have enlarged the meaning of the word “dispose” they have done so in order to effectuate a transaction which was equivalent to a sale out and out. Phelps v. Harris, 101 U. S. 380; Fling v. Goodall, 40 N. H. 219. (9) In the execution of'a power the law requires strict compliance with the terms of the donor, and especially will this be true of a power to cut out remaindermen, as in the case at bar. Garland v. Smith, 164 Mo. 15; Price v. Courtney, 87 Mo. 391; 2 Washburn on Real Prop., see. 1688; Tiedeman on Real Property, sec. 567. (10) The office of a deed of trust is not to alienate land, but to create a lien thereon, and is wanting in all the essential, elements of alienation. Dougherty did not “dispose of the absolute estate in fee simple title,” when he executed this deed, of trust; he simply created a lien upon the land. Dickerson v. Bridges, 147 Mo. 243.

      Nagel & Kirby also for respondent, Augusta Lucy Dougherty Perry.
    (1) In the construction of a will all parts of the will must he read together, in the light of the surrounding circumstances and with the purpose of ascertaining who were intended to he the objects of the testator’s bounty. His intentions thus disclosed will he made effective unless they contravene some fixed rule of law. Underwood v. Cave, 176 Mo. 12; McMillan v. Farrow, 141 Mo. 55; Meiners v. Meiners, 179' Mo. 626; McCulloughs, Admr. v. Anderson, 7 L. R. A. (Ky.) 840. (2) A power of disposition added to a life estate is not repugnant either to the life estate or to the remainder over. If not exercised it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of, — the remainder being subject to such defeat. Rubey v. Barnet, 12. Mo. 3; Gregory v. Cowgill, 19 Mo. 415; Bryan v. Christian, 58 Mo. 98; Reinders v. Koppelmann, 68 Mo. 482; Russell v. Eu-banks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Gavin v. Allen, 100 Mo. 293; Lewis v. Pitman, 101 Mo. 281; Evans v. Folks, 135 Mo. 397; Buford v. Aldridge, 165 Mo. 419; Underwood v. Cave, 176 Mo. 1; McCulloughs, Admr. v. Anderson, 7 L. R. A. (Ky.) 836; St. L. Brew. Assn. v. Fueller, 182 Mo. 93; Hoxie v. Finney, 147 Mass. 616; Roberts v. Lewis, 153 U. S. 367; Dickey v. Barn-stable, 98 N. W. 368; Hamlin v. U. S. Exp. Co., 107 111. 443; Hovey v. Walbank, 100 Cal. 193; Clark v. Middles-worth, 82 Ind.'240; Stuart v. Walker, 72 Me. 145; Wiley v. Gregory, 135 Ind. 647; Collins v. Wickwire, 162 Mass. 143; Hemhauser v. Decker, 38 N. J. Eq. 426. (3) When a power of disposal is beneficial, i. e., is given to a donee with intent that he may, by exercising it, benefit himself, it is more liberally construed in his favor than when it is a mere power in trust. Russell v. Eubanks, 84 Mo. 89; McCulloughs, Admr. v. Anderson, 7 L. R. A. (Ky.) 840; Sweeney v. Warren, 127 N. T. 426; In re Hesdra, 2 Connoly, 514; Williams v. Yeach, 17 Ohio 171; Cain v. Cain, 29 So. 846. (4) A general power may be exercised in favor of the donee or his creditors. The powers given by the Dougherty will were beneficial and general, and therefore included a power to give away, and to mortgage. Russell v. Eubanks, 84 Mo. 89; Ross y. Rauschenbusch, 173 Mo. 589; 22 Am. and Eng. Ency. Law (2 Ed.), 1098, 1133; Simpkins v. Bales, 98 N. W. 580; King v. Warren, 32 Beav. Ill; Hicks v. Ward, 107 N. C. 392; Degman v. Degman, 98 Ky. 717; Holt v. Hogan, 5 Jones Eq. 82 (58 N. C. 82); Shank v. Dewitt, 44 Ohio St. 237; Mut. Life v. Everett, 40 N. J. Eq. 346; In re Linzces Sett., 23 Beav. 241; 2 Washb. on Real P. (4 Ed.), 659; Williams on Real P. (17 Ed.), 439; 1 Sugden on Powers, 514; Farwell on Powers, 67. (5) The words “to dispose of,” when not qualified or limited by the context, have no technical or limited meaning, and therefore give an untrammeled power of disposition. Andrew v. Auditor, 5 Ohio (N. P.) 128; U. S. v. Gratiot, 39 U. S. (14 Pet.) 526; Phelps v. Harris, 101 U. S. 370; Stokes v. Payne, 58 Miss. 614; Fleming v. Mills, 182 111. 464; Garland v. Smith, 164 Mo. 1; Love v. Pamplin, 21 Fed. 755; Heíferich v. Hefferich, 21 Week. L. B. 313; Tower v. Hartford, 115 Ind. 186; Higginson v. Kerr, 30 Ont. 62; Beard v. Knox, 5 Cal. 256. (6) The decree in the Worden case (at bar), was erroneous in not declaring and decreeing the interest of the parties to the deed of trust. R. S. 1899, sec. 4386.

      Thomas P. Bashaw and Alexander Young for respondent Charles F. Loker.
   BRACE, C. J.

This is a suit for partition of a lot of ground in Block 208 E., in the city of St. Louis, fronting thirty feet on the west line of Thirteenth street and running westwardly that width to the east line of Centre street; of the undivided one-half of which the plaintiff, in his petition, claimed to he the owner as tenant in common in fee simple with the defendants.

The judgment was for the defendants, and the plaintiff appeals.

Since the case has been pending in this court, the plaintiff has died, and the case has been revived in the names of Thomas L. M. Grace, Margaret M. Grace, executors and trustees, and William L. Grace, a trustee under the will of the said Patrick Grace.

The case made is this:

James S. Dougherty died testate, seized of the land in question, leaving a widow and two children, to-wit, .James S. Dougherty and Augusta Lucy Dougherty, who has since intermarried with John W. Perry. His will is as follows: °

“I, James S. Dougherty, of St. Louis, Mo., being of sound and of deposing mind, do make, publish and declare the following as my last will and testament, to-wit :
First: I direct all my debts justly due to be paid.
“Second: I give and devise to my wife my residence and furniture for sole use and the use of my children for and during her natural life, and such other interest in my estate as the law will allow, and may be allowed according to the within or attached contracts. All the residue of my estate, personal and mixed, I give and devise equally to my children, James S. Dougherty and Augusta Lucy Dougherty, during their natural lives, respectfully, with remainder to their heirs or his or her heirs of their body, but with full power and authority to each of my said children after their majority to dispose of the absolute estate in fee simple title, and on the death of either the survivor to inherit. But should both my children die without issue of their body, then and in that event my grandnephew, Charles F. Loker, shall inherit all my property.
“I appoint Melvin L. Gray and James R. Loker executors of this my last will.
“In testimony whereof, I have hereunto set my hand and seal this 5th day of April, 1878.
“James S. Dougherty. (Seal.)
“Subscribed, sealed and declared by the above-named J. S. Dougherty as and for his last will and testament in our presence and in the presence of each other herewith subscribing our names as attesting witnesses thereto this 5th day of April, 1878.
“J. O. Page.
Thomas J. Henley.
Thos. P. Miller.”

“The within or attached contracts” mentioned in the body of the will constituted an antenuptial contract whereby he charges his estate with an annuity of $800 in favor of his wife during her'wid'owhood.

On the 11th of February, 1898, the widow, released to her son, James S. Dougherty, all her right, title, interest and claim in and to the property in controversy. Afterwards, on the 5th of March, 1898, the said James S. Dougherty and wife executed a deed of trust of that date conveying “the absolute estate in fee simple title in and to the undivided half” of said lot to a trustee to secure the payment óf a principal note for $1,250 and two interest notes for $13.75 each, payable to the said Patrick F. Grace. The debt secured was not paid, the deed of trust was duly foreclosed and the said Grace became the purchaser of the premises at the price of $1531.75, received the trustee’s deed therefor, and thereupon instituted this suit, averring that the land cannot be partitioned in kind and asking that it be sold and he be given one-half of the proceeds.

The defendants are Augusta Lucy Dougherty Perry and her husband; James S. Dougherty, the grantor in the deed of trust; William Lyons, who held a second mortgage on the. premises executed by the said James S. Dougherty, which also covered other land; and Charles F. Loker, the grandnephew of the testator. Of these only Mr. and Mrs. Perry answered, their answer being in effect a general denial of the material allegations of the petition, with a specific averment that “Plaintiff is only entitled’ to a life estate in an undivided one-half interest in said real estate.”

On the trial the defendants inter alia offered in evidence the deed of trust and trustee’s deed aforesaid, and at the close of the case the court excluded these deeds and entered judgment for the defendants, thereby holding that the plaintiff acquired no interest whatever by virtue of these deeds. To determine whether the trial court was right or not, in so holding, it becomes necessary to ascertain in the first place what interest in and power over the land in question was acquired by the said James S. Dougherty by the will of his father, a question to be determined by a proper construction of the residuary clause of his will.

I. The controlling rule in construing wills in this Staté, to which all technical rules of construction must give way, is: to give effect to the true intent and meaning of the testator as the same may be gathered from the whole instrument, if not violative of some established rulé of law; and in arriving at that intention, the relation of the testator to the beneficiaries named in the will and the circumstances surrounding him at the time of its execution are to be taken into consideration, and the will read as near as may be from his standpoint, giving effect, if possible, to every clause and portion of it, and to this end, if need be, words may be supplied and omitted, and sentences transposed. [R. S. 1899, sec. 4650; Brooks v. Brooks, 187 Mo. 476; Dozier v. Dozier, 183 Mo. 137; Meiners v. Meiners, 179 Mo. 614; Simmons v. Cabanne, 177 Mo. 336; Underwood v. Cave, 176 Mo. 1; Cross v. Hoch, 149 Mo. 325, and cases therein cited.]

The evidence in this and the cognate case submitted with it, tends to prove that at the time of the execution of the will the testator was an “old gentleman ’ ’ possessed of ‘ considerable property. ’ ’ That his family consisted of himself, his wife and two minor children, James S. and Augusta Lucy, aged, respectively, about eight and ten years.

It is conceded, and we think it is evident on the face of the instrument, that it was the intention of the testator by the last clause to devise all the residue of his estate, real as well as personal and mixed.

It is manifest on the face of the will that it was written inops consiUi and probably by the testator himself, who by the same token was neither a lawyer nor a scholar. It is inartificially drawn, defective in orthography and grammar, and to its interpretation must be brought good common sense rather than artificial or technical rules of construction either grammatical or legal. Evidently a man of good sense but of limited education, he was doubtless moved to its preparation by the usual motives that induce the execution of a last will and testament in view of approaching death, his leading purpose being to make provision for those who were dependent upon him, and upon whom his affections naturally centered. These were his wife and his two infant children. His main purpose as to his wife having been accomplished by a ratification of his antenuptial contract with, and an additional devise to her; by the residuary clause in question, he sought to accomplish his main purpose as to his children. In it they were the special objects of his bounty. They were the persons he had in mind and for whose benefit this residuary clause was written, the leading and dominant idea of which is, that the residue of his estate is to go to them in equal shares for life with full power in each of them after their majority to dispose of his or her share of the estate in fee simple absolute. The remainder of the clause is devoted to providing for a devolution of these shares in case of the death of the children or either of them before they arrived at their majority, or before they had disposed of their shares.

As might have been expected of one of his limited accomplishments, not well versed in the technical meaning of legal terms, the language he uses for the purpose is not always aptly chosen, but it seems clear enough that his meaning, rendered broadly in everyday English, is that, if one of his children should die without issue before he or she arrived at the age of majority or before he or she had disposed of his or her share, the share of the one so dying should go to the other, and if both died without issue before the happening of these contingences, then the grandnephew should take the estate, and in the case of the death of either with issue, the issue should stand in the shoes of the parent, and the grandnephew should get nothing. 'For the purposes of this appeal it is, perhaps, unnecessary to trace the course of that devolution more definitely, for when James S. Dougherty executed the deed of trust aforesaid he had attained his majority, and the crucial question in this case is, could he then execute the power given him in the will so as to defeat the remainders limited upon his life estate, subject to that power, it evidently being the intention of the testator that they should be so subject?

But as it will be necessary finally to determine the interest of the defendant, Augusta Lucy Dougherty Perry, in the premises, a formal construction in appropriate legal terms is called for. None better could be given than that found in the brief of J. L. Minnis, Esq., Amicus Curiae, as follows:

“The manifest intention of the testator as expressed in his will was to devise to each of his children a life estate in the undivided one-half of the residue of his estate, with power to dispose of the fee to such half after attaining majority, and the remainder to the survivor for life with like power contingent on the death of the other without issue, hut if both children have issue, then with remainder to such issue per stirpes; if only one of the children has issue with remainder to such issue; but if both of the children, die without issue, then with remainder on the death of the survivor to Loiter. The remainders contingent on the failure of the children to exercise the power to dispose of the fee.”

Is there any established rule of law that will defeat the intention of the testator as thus expressed? For the defendant it is contended that there is, in that, the power to dispose of the fee to their respective shares given to the testator’s children must be rejected because repugnant to the disposition of the fee by the testator himself to the heirs of the first taker, and in the case of the failure of such heirs to the grandnephew of the testator. This contention cannot be maintained. It must be remembered that the devise is express for life with power to dispose of the fee, and it is a well-settled principle of law that a power or disposition added to a life estate is not repugnant to the life estate or to the remainder over. If not exercised it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of; the remainder being subject to such defeat, as in this case. [24 Am. and Eng. Ency. Law (2 Ed.), 449; Russell v. Eubanks, 84 Mo. 82-88, and cases cited; Harbison v. James, 90 Mo. 411; Graven v. Allen, 100 Mo. 293; Lewis v. Pitman, 101 Mo. 281-291; Greffet v. Willman, 114 Mo. 106; Evans v. Folks, 135 Mo. 397-403; Garland v. Smith, 164 Mo. 1; Underwood v. Cave, 176 Mo. 1; St. Louis L. & B. Assn. v. Fueller, 182 Mo. 93.]

The rule is thus stated in 24 Am. and Eng. Ency. of Law (2 Ed.), 449: “A limitation after a life estate contingent upon alienation by the life tenant is valid, and a life estate may be given with the power of disposal or appointment superadded, and an executory limitation in default thereof will be good,” and in a foot note at the bottom of the page, cases from England, the Supreme Court of the United States and from twenty-two States are cited.

In Russell v. Eubanks, 84 Mo. 82, the will gave to Julia Ann Williams an estate for life, with power to sell and dispose of the property as she pleased, with remainder to Frances Ellen and Henrietta Gregg Robinson. The court said:

“The effect of this added power of disposition, if exercised by her, it may be conceded, would have been to carry the fee, and thus cut. off the remainder. But it was only a power, and if not exercised her life estate was not thereby enlarged and converted into a fee, and the remainder over, at her death, is valid and takes effect in the remainderman. These positions, we think, are abundantly sustained by adjudications in this State and elsewhere.” [Citing numerous authorities.]

Further on the court said: “It may be true that he intended by the power to sell and dispose of the property as she pleased, to enable her, by exercising the power, to convert her life estate into a fee, but it is equally true that he intended and so provided that, in case she did not exercise the power, the property so remaining at her death should go to and vest in the legatees in remainder. Of this, we think, under the language of the will and rules of construction, there can be no reasonable doubt. ’ ’

In the case of Harbison v. James, 90 Mo. 411, the clause of the will under consideration was as follows:

“I give and bequeath to my beloved wife, Mary F. Hall, all my property, including real and personal, of any and every description whatever, giving her the right to sell and reinvest, as she may desire, any part of the same for her separate use and benefit, and at her death I desire that any portion of my estate remaining undisposed of shall go to. my three daughters, Marie Davis, Annie Harbison and Amelia Wilson.”

The court gave effect to the will as written. The court said: “The power of sale or disposal, super-added to the life estate, if not exercised, does not enlarge the life estate into the fee, and in such case the remainder over is valid, and, at the death of the life tenant, takes effect in the remainderman.”

The court announced the same doctrine in the case of Lewis v. Pitman, 101 Mo. 281, and in Greffet v. Will-man, 114 Mo. 106. In the former case the court said:

“The testator gives all of it to his wife, with the right and power in her to carry on the manfacturing business, or to dispose of the same, as to her may seem best, with the further qualification that whatever of the property she has remaining at her death shall go to the children. Thus interpreted, does the will violate any rule of law? It is claimed by the appellant that it does, and this for the reason that where there isa devise of property, with an absolute power of disposal in the first taker, a subsequent limitation over is void. We shall not review the many authorities cited in support of this proposition of law. It may be conceded that a devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee. [Green v. Sutton, 50 Mo. 186.] But there is a wide difference between that class of cases and those where there is a devise for life with a power of disposition. Where an express life estate is created, an added power of disposition does not convert the estate into a fee.”

The wife having failed to exercise the power, the court held that: “ She had but a life estate . . . and at her death the children became entitled to all that remained, and they are entitled to take it under their father’s will.”

In Evans v. Folks, 135 Mo. 397, the will under consideration gave a life estate, with superadded power to dispose of the fee with remainder over. The court said: “However, as he gave to her a life estate by express words, with a power of disposition, which the law ho].ds to be a mere power, which was not executed during the life time of Mrs. Evans by a conveyance of the property under the seventh clause of the will, on her death it passed to the heirs of Nathan Evans and Stacy Evans, youngest son of William Evans, or those of them who were then living.”

In Garland v. Smith, 164 Mo. 1, the deed under consideration conveyed: (1) a legal title in fee simple to the trustee; (2) an equitable life estate to the wife, with power to dispose of the fee superadded; (3) a contingent remainder to the issue of the wife living at ’ her death; and (4), in default of such issue, a contingent remainder to the right heirs of Charles Garland. The court held that this arrangement was consistent and valid; that the instrument by which the wife attempted to execute the power being void, and the wife having died, the land vested in the right' heirs of Charles Garland.

In the case of Underwood v. Cave, 176 Mo. 1, the clause of the will under consideration read:

“It is my will that the property, real and personal, hereby bequeathed to my wife, shall be hers absolutely during her natural life, to use and enjoy as she may see proper, and at her death, if there should be anything left, -my will is that it is be vested and applied to the use of the Lone Jack Baptist Church, used as may be thought most conducive to the advancement of the Christian religion.”

It was held that the wife took a life estate, with superadded power to dispose of the fee, and that the exercise of the power by her cut out the remainder-man.

And in the last case cited, St. Louis L. & B. Assn, v. Fueller, 182 Mo. 93, it was held that the power given to the life tenant “to sell, convey, mortgage or otherwise encumber the land gave her power not only to sell her life interest but the land itself, and when she exercised that power she cut out all interests which the remainderman would have had if she had not exercised that power.”

It follows from what has been said that James S. Dougherty, at the time the deed of trust aforesaid was executed, had power to dispose of an undivided one-half of the real estate in question in fee simple.

II. It is next contended that although it be held that James S. Dougherty had power to dispose of the fee simple title to the real estate in question, he had not power to dispose of it by mortgage— that the power of disposal created by the words “with full power and authority to dispose of the absolute estate in fee simple” should be construed as a power to sell and that a power to sell does not include a power to mortgage. It may be'conceded that as a general rule the power to sell does not include a power to mortgage and that the execution of a power by means of a mortgage is a disposition in favor of the donee of the power, and it may be further conceded that if it appeared from the context of the will that it was the intention of the testator that the power granted should be exercised by sale only or for the benefit of others, which is sometimes made manifest by the purpose for which the power of disposal is given and sometimes by the connection in which the word “dispose” is used, the contention might be maintained. But such is not this case. The grant of power to dispose here is full and general, to be exercised by the grantees for their own benefit, unhampered as to the mode in which it is to be exercised and not associated with any words which upon the maxim of “noscitw a sociis” or the principle of ejusdem generis could be construed to put any limit upon their power. In other words, the power here is general and unlimited as contradistinguished from the particular or limited powers contemplated in the authorities cited in support of this contention. The law upon the subject is thus tersely expressed in the text-books: In 22 Am. and Eng. Ency. of Law (2 Ed.), 1133:

“The question whether a power is general or limited depends solely upon the terms of the instrument creating the power; and a power general in its terms will not he cut down to a limited power by subsequent provisions, except by express words or unless an intent to do so is apparent from the instrument creating the power. A general power of appointment may be exercised in favor of whomsoever the donee pleases, even in favor of the donee himself or for his benefit.”

And in 1 Sugden on Vendors (3 Am. Ed.), p. 514, as follows:

“A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, which a particular power may also do, but because it enables him to give the fee to whom he pleases;'he has an absolute disposing power over the estate, and may bring it into the market whenever his necessities or wishes may lead him to do so.”

To the same effect are the authorities generally, and from these principles it follows that no special mode of exercising the power being prescribed in the instrument creating it, such general power of appointment may be executed by a mortgage which will be operative to the extent of the interest of the mortgagor. “The mortgage, however, will operate as an execution of the power only to the extent of the mortgagee’s interest, leaving the equity of redemption or surplus as though the power were undisposed of; but where the mortgage also contains limitations over of the surplus, after the satisfaction of the debt secured, it will operate as a complete execution of the power so as to defeat limitations over in default of an exercise of the power. ’ ’ [22 Am. and Eng. Ency. of Law (2 Ed.), 1108.] And such was the deed of trust in this case..

III. It is next, and finally contended, that although James S. Dougherty might have executed the power given him in the will of his father as to the land in question by the deed of trust, he did not in fact do so, because no reference to the power is made in said deed and the effect thereof was to convey only his life estate. The power of said Dougherty under the will was to dispose of “the absolute estate in fee simple.” By the deed, which was for a valuable consideration, he conveyed “the absolute estate in.fee simple,” as he must have intended what he said, and as he could not have conveyed the absolute title in fee simple except in execution of the power, this sufficiently indicates that the deed was made in execution of the power. [Underwood v. Cave, 176 Mo. 18; Boyer v. Allen, 76 Mo. 498; Kinney v. Mathews, 69 Mo. l. c. 523; Campbell v. Johnson, 65 Mo. 439; Owen v. Ellis, 64 Mo. 77.]

The rule in some of the earlier cases upon which this contention might have been maintained (Pease v. Pilot Knob Iron Co., 49 Mo. 124; Turner v. Timberlake, 53 Mo. 371; Owen v. Switzer, 51 Mo. 322) was thoroughly discredited by the learned and able opinion of Napton, J., in Owen v. Ellis, supra, and Owen v. Switzer, supra, the last case in which the rule was ever maintained, was expressly overruled in Campbell v. Johnson, supra, and is no longer the law in this State.

It follows from what has been said that Patrick F. Grace by virtue of the deed of trust, aforesaid, and the trustee’s deed, executed in pursuance of the sale thereunder, acquired the fee simple title to an undivided one-half of the premises, and that the court erred in rejecting those deeds and in giving judgment for the defendants. The judgment of the circuit court will, therefore, be reversed and the cause remanded to be proceeded with in accordance with the views expressed in this opinion.

All concur except Graves, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    WORDEN et al v. PERRY et al.; AUGUSTA LUCY DOUGHERTY PERRY, Appellant.
    In Banc,
    June 20, 1906.
    WILL: Cross-Remainders: Power of Disposition. The -will gave the residue of testator’s estate to two children during their natural lives with remainder to the heirs of their bodies, “but ■with full power and authority to each after their majority to dispose of the absolute estate in fee simple title,” and on the death of either without children the survivor, or if dead, the survivor’s children, were to take. The son, after he reached his majority, for a recited consideration of $59,125 conveyed a half interest to an intermediary and he conveyed the same to the son’s wife. Neither the intermediary nor the wife paid the son anything for the property, and the son testified that he made the conveyance so that the property would not go to his sister if he died without issue. Held, in a suit by the wife against the sister for partition, that the wife took by the deed (which recited that it was made “with the intent and with the purpose of exercising, as he does hereby exercise, the full power given him by said will to dispose of the absolute estate in fee simple”) the title in fee to an undivided half of the property, and not simply a life estate.
    Appeal from St. Louis City Circuit Court. — Ron. H. D. Wood, Judge.
    Reversed and remanded.
    P. A. Griswold for appellant.
    (1) In construing a will the great object is to ascertain the intent of the testator. Lessee of Williams v. Veach, 17 Ohio 180. (2) The power of disposal' created by the words “with full power and authority to dispose of the absolute estate in fee simple title” did not confer on defendant Dougherty the power to give away his estate, but must be construed as a power to sell. Matter of Hesdra, Connoly 519; Lessee of "Williams v. "Veach., 17 Ohio 180; Hunt v. Hunt, 11 Nev. 449; Stokes v. Payne, 58 Miss. 618; Matter of Davids, 5 Dem. 16; Matter of Rosenfield, 5 Dem. 254; Sires v. Sires, 43 S. C., 266. (3) Power to sell real estate does not authorize a voluntary gift of same. Dupont v. Wertheman, 10 Cal. 367; Garland v. Smith, 164 Mo. 17; Fleming v. Miles, 182 111. 471; Sires v. Sires, 43 S. C. 271; Farwell on Powers, 454. (4) Where the courts have enlarged the meaning of the word “dispose” they have done so in order to effectuate a transaction which was equivalent to a sale out and out. Phelps v. Harris, 101 IT. S. 380; Fling v. Gooddale, 40 N. H. 219. In the execution of a power, the law requires a strict compliance with the intent of the donor, and especially will this be true of a power to cut out remaindermen, as in the case at bar. Garland v. Smith, 164 Mo. 15; Price v. Courtney, 87 Mo. 391; 2 Washburn on Real Property, p. 614; Tiedeman on Real Property, sec. 567.

      Kortjohn & Kortjohn for respondents.
    (1) Where there isageneral power of appointment, and no particular móde of executing saméis prescribed, the donee of the power can give the property away without any consideration, by such instrument as he may elect. (2) Where a power is given for a particular purpose, then the power can be executed only to carry out that purpose. (3) The words “dispose of” have no technical legal significance and as in their ordinary meaning they include every method for alienating property, they must be so construed, unless the instrument creating the power shows that they were used in a different sense.
   BRACE, C. J.

This is a suit for partition of a lot in block number 3970 of the city of St. Louis, fronting one hundred find thirty-five feet on the west side of Newstead avenue by a depth westwardly of one hundred and fifty feet to property now or formerly of Enoch T. McCune, and bounded south by the south line of the Cul de Sac common fields. The controversy arises under the will of James S. Dougherty, construed in the case of Grace v. Perry et ah, submitted with this case and reported at page 550 of this volume, in connection with this opinion must be read.

"When James S. Dougherty, the son, attained his majority, he married Alice M. Stadler, the plaintiff. Thereafter, he, his wife joining, executed a deed to the property in question, inter alia, to William T. Peters. The deed contained the following recitals: “The said James S. Dougherty, now past his majority, and who makes this deed with the intent and with the purpose of exercising, as he does hereby exercise, the full power and authority given him by the will of his deceased father, James S. Dougherty, to dispose of the absolute estate in fee simple title in and to the undivided one-half interest of the hereinafter described real estate in the city of St. Louis ... in consideration of the sum of $59,125 . . . do by these presents, grants, bargain and sell, convey and confirm . . . all his undivided one-half interest in and to a parcel of land,” describing the property in controversy, together with a great deal of other property. The deed contains the modern covenants of warranty. Thereafter, William T. Peters conveyed the property in controversy to Alice M. Dougherty, the wife of James S. Dougherty. Peters paid Dougherty nothing for the transfer of any of the property to him, and the plaintiff paid Peters nothing for the property in controversy. Dougherty says he made the .conveyance of the property in controversy to Peters in order to have him convey it to his wife so it would not go to his sister (the defendant Mrs. Perry) or to Loker, if he died without selling it.

Thereafter, Dougherty’s wife procured a divorce from him, and married James L. Worden. She brings this suit and asks to have the land partitioned, claim- . ing to he the owner of an undivided half interest in the land in fee. The defendant claims that plaintiff, Mrs. Worden, acquired only the life estate of her husband, James S. Dougherty.

The court found that the plaintiff Alice M. Stadler Worden is entitled to an undivided one-half interest in said real estate in fee simple. The defendant, Augusta Lucy Dougherty Perry, is entitled to an undivided one-half interest in said real estate for life, remainder to the heirs of her body, with power in said Augusta Lucy Dougherty Perry to dispose of the fee simple title of said undivided one-half interest, provided, that if she should die, without having exercised said power of disposition, then the said half interest of said Augusta Lucy Dougherty Perry in said real estate shall go to the defendant, James S. Dougherty; and in case both said Augusta Lucy Dougherty Perry and James S. Dougherty should die, without issue of their body, then the half interest of said Augusta Lucy Dougherty Perry in said real estate shall pass to and vest in the defendant Charles F. Loker. The court doth further find that the undivided one-half interest of the said Augusta Lucy Dougherty Perry is subject to the annuity of eight hundred dollars for the benefit of Mary C. Dougherty, placed thereon by the last will o.f James S. Dougherty, deceased. The court doth further find that the defendant William Lyons has no interest in said real estate. And the court decreed that partition in kind of said real estate he made between the several owners thereof, according to their respective interests therein, as hereinbefore set out.

The finding and the decree in this case is in accordance with the ruling in the Grace case. The finding is perhaps not as definite as it should have been. If the finding had read, “That the plaintiff Alice M. Stadler Worden is entitled to an undivided one-half interest in said real estate in fee simple, and the defendant Augusta Lucy Dougherty Perry is entitled to an undivided one-half interest in said real estate for life, remainder to the heirs of her hody, with power in said Augusta Lucy Dougherty Perry to dispose of the fee simple title of said undivided one-half interest in fee simple, provided that if she should die without issue of her body and without having exercised said power of disposition, then the said half interest of the said Augusta Lucy Dougherty Perry shall go to the said James S. Dougherty for life, remainder to the heirs of his body, with power in said James S. Dougherty to dispose of the fee simple title of said one undivided half interest, provided that if the said James S. Dougherty should die without heirs of his body and without having exercised said power of disposition, then the half interest of the said Augusta Lucy Dougherty Perry in said real estate shall pass to and vest in the said Charles F. Loker in fee simple,” the decree would have defined the rights and interests of the parties in the premises with precision and in exact compliance with the rulings in the Grace case. This is probably the meaning of the decree anyhow; but as the case must-be remanded for further proceedings, the finding and decree may as well be amended in this respect, and when so amended the decree ought to be affirmed. It is accordingly so ordered, and the cause remanded to the circuit court for further proceedings in accordance with the views herein expressed.

All concur except Graves, J., not sitting.