And the greater the success in showing that the powers claimed to be granted to Mrs. May amount to the full property, the stronger is the argument resulting, that they were not granted. That the powers granted do not amount to property, even though they be considered to extend to the whole estate, and not to the life estate merely, I refer the court to Tomlinson v. Dighton, 1 Pr. Wms. R. 149; Reith v. Seymour; 4 Russ. R. 263; Jackson v. Robins, 16 John. R. 537, 538; Caleb v. Field, 9 Dana's Ken. R. 346; Burwell's ex'ors v. Anderson, 3 Leigh 348, 357. But, with the tendency of the courts to aid defective executions of powers, illustrated in Irwin v. Farrar, Barford v. Street, and other cases cited in Burwell's ex'ors v. Anderson, 3 Leigh 348, 357, it is of less importance to consider the question, whether the powers given in this will be mere powers, or amount to property, since Mrs. May's answer claiming the property. It is argued here, as it was argued in Madden v. Madden's ex'or, 2 Leigh 377, that the testator "meant to give to Mrs. May the absolute power of disposal of the property; and that this converts the estate for life into an absolute estate, and destroys the intention to give it for life." But the court, in that case, did not suffer a doubtful phrase to defeat the will of the testator; and it ought not to suffer it here. Effect should be given to the entire will-every part of it-as well that in which children are provided for as that which provides for the widow. We should so construe the will "as to the devisor's intention, by giving effect to all the words used by him." Coleridge J. Doe dem Herbert v. Thomas, 3 Ad. & Ell. R. 123, 30 Eng. C. L. R. 48. "No word is to be rejected which can have any construction." 2 Prest. Est. 102 m. No effort to explain the words in a different sense can do so much violence to the clause as the total rejection of the whole bequest given in express terms over." Marshall Ch. J., Smith v. Bell, 6 1871. March Term. May V. Joynes & als. 1871. March May V. Peters U. S. R. 79. And by Dargan Ch. J., Flinn v. Term, Davis, 18 Alab. R. 132 (cited in Keyes on Chattels, p. 114, § 146), "If it be doubtful about the first taker's power to dispose, this doubt should not defeat the reJoynes mainder over." Even the dissenting judge in Madden v. Madden's ex'or admitted (see 2 Leigh 386), "the character of the estate first given may, in doubtful cases, influence the construction of the will, as to the extent of the power given. Opinion of Green, J. & als. We should not, then, struggle against the estate in remainder; but should so read the words of power annexed to the life estate as to preserve the remainder, if possible, to carry out the intention. "Such a sense, if possible, ought to be put upon a will as is agreeable to the intention of the party and consistent with the rules of law." By Sir Joseph Jekyl, in Upwell v. Halsey, 10 Mod. R. 441. For "the estate being the testator's to give, his will is the law of the subject, unless that will be against the law of the land." By Tucker, P., in Burwell's ex'ors v. Anderson, 3 Leigh 348, 356. And unless what the testator gave Mrs. May amounts to the absolute property, there is no law of the land to forbid the gift of a remainder to children. The express estate given to Mrs. May is for life only; and "the express estate for life negatives the intention to give the absolute property." Tucker, P., S. C. p. 357. And shall the words of the will, confining Mrs. May to a life estate, and the words granting the estate in remainder to the children, both, be rejected? If words are to be rejected, is it not better to reject the words giving the powers than reject the words limiting the estates? Certainly, as was said by Chief Justice Marshall, "no effort to explain the words in a different sense can do so much violence to the clause as the total rejection of the whole bequest given in express terms" to the children and grandchildren. Would it do so much violence to this will, to construe March May V. Joynes the words of power to Mrs. May to relate to the life 1871. estate, as to allow them to overrule the words limiting Term. both estates: enlarging one over the express estate granted, and defeating the other entirely. Such words of power were so limited in the construction in the before cited cases of Madden v. Madden's ex'or, and Smith v. Bell; and they were understood to be confined to the first taker's estate; authorizing the first taker to sell, convert, &c., the estate; but no more. The manner in which the clause granting the powers is introduced, indicates that they are intended to qualify the already granted estate, rather than to confer a new and larger estate: thus "to have during her life, but with full power to make sale," &c. And the grants "to make sale," "to convey absolute titles," "to use the purchase money for investment," neither imply the fee (for the appointee takes under the original deed, 2 Sugd. Powers 26-7 m), in the subject sold, nor the property in the price. They are but a cautious expression of the mere power of conversion, and an implied negation of property; for expressio unius exclusio alterius. It would not be expected that the next words would convey absolute power; presenting a striking contrast, not only with the life estate, but also with the cautious expressions of power, just used. The power " to use the proceeds for any purpose she pleased," could not be given that she might herself enjoy them: she did not want them; the income exceeded the wants of this -old lady. And, if this power had been intended to enable her to give away the whole estate, why was she forced to convert it by selling before she could give? To require a lady of her age to bring so large an estate into market, would be an inconvenient restriction on the jus disponendi, if intended to be granted, and might damage the estate. It might not be judicious to sell it to convert it into the state to be given away. & als. March 1871. Like the power to invest, it was designed for the imTerm, provement of the estate; while it exonerated her from accountability; as in Bradley v. Westcott, 13 Ves. R. May V. Joynes & als. 444. It is argued that these words import an absolute power of disposition. These words are "to use;" and though for any purpose, it is still to use: And the use of money is not the gift of it. Green, J., in Madden v. Madden's ex'or, 2 Leigh 377, 389; Dunbar's ex'ors v. Woodcock's ex'or, 10 Leigh 628; Keesee v. Sharpe, decided by the special court of Appeals; 1 Jarm. Wills 793 note (1st Amer. edi. by Perkins). It means such use as is consistent with the life estate; as in Smith v. Bell, 6 Peters U. S. R. 68. On the other side the following cases were cited to maintain a different view, viz: Elton v. Sheppard, 1 Bro. Ch. R. 532; Hales v. Margerum, 3 Ves. R. 299; Hixon v. Oliver, 13 Ves. R. 108; Robinson v. Dusgate, 2 Vern R. 181; Maskelyne v. Maskelyne, Amb. R. 750; Tomlinson v. Dighton, 1 P. Wms. R. 149. But in these cases there is a general bequest, with express power to dispose. They decide nothing as to the effect of such words, in such a connexion as in this will. 1 Sugd. Powers 125-6; 1 Roper Leg. 429-30 (1 Amer. 3 London edi). And I refer to Keyes on Chattels, s. 154, as to the cases of Green v. Harvey; Grey v. Montagu; Bradley v. Westcott; Ross v. Ross; and Cuthbert v. Purrier. For the effect of such words, see 2 Preston Est. 74, 75 c. m.; but that "the general power of disposition, without an express limitation of estate, is their distinguishing feature; and that express words would qualify or restrict the estate," see Id. 80 m, 85 m; Keyes Chattels, p. 131, s. 167; Reith v. Seymour, 4 Russ. R. 263. The law does not incline to enlarge express estates by implication. 1 Sugd. Powers 124 m. And if this was a power to dispose, rather than use, it would be restricted by the context to Mrs. May's lifetime. Mad den v. Madden's ex'or, supra; Smith v. Bell, 6 Peters U. S. R. 68; Keyes Chattels, s. 262. In Smith v. Bell, the gift being of personalty, was absolute; and the absolute interest was cut down by implication; and this construction prevailed. Ch. J. Marshall reviewed the authorities; and, as to Upwell v. Halsey, it is sustained by Cooper v. Williams, Prec. ch. 71; Surman v. Surman, 5 Madd. R. 123; Stevens v. Winship, 1 Pick. R. 318; Larned v. Bridge, 17 Id. 339. And see also Bradley v. Westcott, 13 Ves. R. 444. In support of the argument that the express grants of power do not give Mrs. May power over the estate beyond her life, I refer to 1 Jarm. Wills 321; Keyes Chattels, s. 75, p. 56, s. 78, p. 59, s. 147, p. 115; Lomax Dig. 117 marg. 193 top; Kinnard v. Kinnard, 5 Watts Pa. R. 100, 110; Dunbar's ex'ors v. Woodcock's ex'ors, 10 Leigh 628. And that it is even so where the estate is cut down to a life estate; see Constable v. Bull, 15 Eng. L. & Eq. R. 424; Duhomel v. Ardovin, 2 Ves. Sen. R. 162; and whether the life estate be express or implied; Constable v. Bull, supra; Gibbs v. Tait, 8 Sim. R. 132; Upwell v. Halsey, 1 P. Wms. R. 651, 10 Mod. R. 441; Keyes Chattels, s. 74; Smith v. Bell, 6 Peters U. S. R. 68, 74: and equally if on a contingency the first taker was allowed to diminish the capital; as for support. Cooper v. Williams; Surman v. Surman; Stevens v. Winship; Larned v. Bridge, supra; Upwell v. Halsey, 10 Mod. R. 441; Smith v. Bell, 6 Peters U. S. R. 68, 83. That no gift is void for uncertainty; but that the uncertainty may be removed by an account; see Keyes Chattels, s. 73–78. In this case the express powers are followed by the. clause, "with only this restriction, that whatever remains at her death shall, after paying any debts that she may owe, or any legacies that she may leave, be divided as follows, viz.," &c. And because the remainder only, after paying her debts and legacies, is 1871. March May V. Joynes & als. |