JOHN R. WOOD ET AL. vs. HOLLIS AMIDON ET AL.

JOHN R. WOOD ET AL. vs. HOLLIS AMIDON ET AL. In Equity. — No. 4175. Where M. devises all his estate, both real and personal, to his wife during her life, and also authorizes her to give to his children their just portion, or whatever amount she might please to give them, as they came of age or were married, and where he also authorizes her to do with his estate what she might think best for her interest and the interest of the children, it was held she could convey a part of the real estate to a daughter of the testator and her husband, and that on the death of such daughter, leaving her husband surviving, the said real estate did not descend to the heirs of the testator. STATEMENT OE THE CASE. This is a suit for the partition or sale of part of lot of land No. 11, in square 464, in the city of Washington, and also for the cancellation of a deed to be described presently. The bill of complaint sets out a copy of the will of the late George Milburn, and the clauses which are in controversy read as follows: First. I will and direct that all my just debts shall be paid by my executrix, hereafter made and named, out of my estate, both real and qiersonal ,• and, to enable her to do it, I hereby authorize and empower her to dispose of the same as she may think best, directing that all my said estate shall be kept together until the 1st day June, 1839, and, if possible, that no part of the same shall be sold or disposed of until after that time. Secondly. I will and bequeath into my beloved wife, Margaret Milburn, all my estate, both real and personal, during her life, after my debts are paid, to be by her managed and conducted in any manner she may think proper and the best for her own interest and that of my children, to whom I give and bequeath all of my said estate, and to their heirs and assigns forever, after the death of my said tvife. I hereby further authorize and direct my said wife, as she may think proper, at any time that any of my said children may come of age or be married, to give to such their just portion, or whatever •amount my said wife may please to give. I also authorize and empower my said wife to do with my said estate as she may think best for her interest and the interest of my dear ■children, whom I will and bequeath to her to be raised and educated and maintained out of my said estate the same as if I were living; and Ido hereby nominate and constitute and appoint my said beloved wife guardian to all of my said •children, and direct that she shall not be required to give any bond or security whatever as said guardian. Thirdly and lastly. I do nominate, constitute, and appoint my said beloved wife my sole executrix of this my last will and testament, and expressly declare that as such executrix .she shall take possession of all my said estate without any of the formalities of the law, except to receive her appointment as such from the orphans’ court. It is my further will and direction that no bond or security whatever shall be required by the orphans’ court from my said wife and executrix, nor shall she be accountable to any of my heirs or children aforesaid for her administration as guardian and executrix. The testator died in the mouth of August, 1838, leaving him surviving a son and three daughters. Thomas, the son, is now deceased, and his surviving children are parties complainant. Margaret A., one of the daughters, intermarried with the defendant, Hollis Amidon. At the time of his death, George Milburn was seized of all of said square 464, and his widow and executrix had disposed of all of said square under the powers conferred in the will, except a part of lot 11 therein, which she conveyed to the defendant, Hollis Amidon and Margaret A. Amidon, his then wife, who was one of the daughters of the said testator. The deed was dated the 19th of November, 1866, and is in substance as follows: This indenture, made this 19th day of November, 1866, between Margaret Milburn, widow of the late George Milburn, of the first part, and Hollis Amidon and Margaret, his wife, of the second part: Whereas the said George Milburn, by his will, did will and bequeath as follows: “I will and bequeath,” &c. “And whereas, under and by virtue of the said authority, the said party of the first part hath already made provision for all the children of the said George Milburn, excepting the party of the second part, who is one of the daughters of the said George Milburn, and intermarried with the said Hollis Amidon, and it is but just and right that a similar provision should be made for her, so as to place her upon a footing with the other children : “And whereas, taking into consideration the improvements-which have been and are now being made by the parties of the second, part at their own expense upon the hereinafter-described premises, and the fact of their having contributed to the support of the party of the first part, and of their engagement to contribute the same during her life, the said premises would be about equal to that of each of the respective shares already conveyed to the other children: “ Now, this indenture witnesseth that the said party of the first part, in consideration of the premises and of the sum of five dollars, paid by the parties of the second part, doth hereby grant, &c., all that part of lot No. 11, (describing the premises in controversy:) “ To have and to hold the said lot of land and premises, together with, &c., unto the said Hollis Amidon and Margaret, his wife, their heirs and assigns, forever.” Margaret A. Amidon died intestate and without issue in December, 1869, and the widow also departed this life in 1874. The complainants now claim that the lot of land pretended to have been conveyed to Amidon and wile descended to the heirs at law of the testator, and that, on the death of said Margaret A. Amidon intestate and without issue, that conveyance became null and inoperative; that, therefore, the complainants, as such heirs, are entitled to have the same canceled. The bill was demurred to, and the case is certified to the general term to be heard in the first instance. L. G. Mine for complainants: 1. The will of George Milburn, deceased, conferred no power upon his executrix to convey his real estate (except for the purpose of paying debts) to any person but his children.- 2. The powers of Margaret Milburn, executrix, were derived from the will. She could, therefore, do no valid act beyond its authority. 3. The execution of the deed dated 19th of November, A. D. 1866, by Margaret Milburn, executrix, to defendant, Hollis Amidon and Margaret A. Amidon, his wife, so far as Hollis Amidon is concerned, was eos abundanti, and conferred no interest in the lan,d. 4. Upon the death of said Margaret A. Amidon, (3d December, 1869,) intestate and without issue, the real estate sought to have been conveyed by the deed aforesaid descended to the heirs at law of said testator, whose rights thereto cannot be divested or impaired by the unauthorized acts of the executrix. Edwin L. Stanton and A. S. Worthington for defendant Amidon: This deed was duly acknowledge on the day of its date, and was recorded on the 6th of January, 1875. 1. This conveyance passed the fee under that clause of the .will which empowers the grantor to do with the estate as she may think best for her interest and the interest of the children. See 8 Vin. Ab., 235, 236; Goodtitle vs. Otway, 2 Wilson, 6; 2 Powell on Devises, 410-12; 1 Sugden on Powers, chap. 4, sec. 1; Cummings vs. Shaw, 108 Mass., 159; Lambert’s Lessee vs. Paine, 3 Cranch, 97; King vs. Ackerman, 2 Black, 408; Norcum vs. D’Oench and Ringling, 17 Mo., 98. 2. There are many cases in which an express estate for life has been held enlarged to a fee by words in a will having the same effect as those contained in this will. See, among other cases, Hogan vs. Jackson, 1 Cowper, 299; Doe vs. Stenlake, 12 East, 515; Helmer vs. Shoemaker, 22 Wend., 137; Jackson vs. Robbins, 16 Johns., 537, particularly p. 583, et seq.; Doebler’s Appeal, 64 Penn. St., 9; Geyer vs. Wentzel, 68 Penn St., 84. 3. Moreover, the power to appoint to children is substantially complied with. Bristow vs. Warde, 2 Ves. jr., 349. [MAJORITY — By the Court :] By the Court : The right of Margaret Milbnrn to convey the real estate described in the deed to Amidon may be derived from that clause of the will which authorizes and empowers her to do with the estate what she may think best for her interest and the interest of her children. There can be little doubt that it was the intention of the testator to give his wife an estate for life, with a power to convey the fee. The conveyance can also be regarded as the execution of a power contained in the will, or as a substantial fulfillment of the direction to convey to the children as they come of age or be married. The recital in the deed that the real estate it conveyed was only a just portion to one of the children of the testator and her hnsband, with the additional consideration that the grantees undertook to contribute to her future support, as they had done previously to the conveyance. This arrangement for her own support she was certainly able to make in the due exercise of the discretion conferred by the will, in her own interest as well as that of the daughter and her husband, to whom the real estate was conveyed. We think the demurrer ought to be sustained and the bill dismissed.