It is a common remark, that, when interpreting a will, the attending circumstances of the testator, such as the condition of his family, and the amount and character of his property, may and ought to be taken into consideration. The interpreter may place himself in the position occupied by the testator when he made the will, and from that standpoint discover what was intended. Brown v. Thorndike, 15 Pick. (Mass.) 388; Postlethwaite's Appeal, 68 Pa. St. 477; Smith v. Bell, 6 Pet. 68. Such a method of procedure is, we think, appropriate to the present case.
Mrs. Devereux's will was made on the twenty-third day of December, 1847, about eighteen months before her death. There is no reason to believe there was any essential change in the nature or the amount of her property between the date of her making the will and her decease, and it may fairly be assumed that what she had in June, 1849, the time of her death, she had when she made her testamentary disposition. At that time her personal property consisted of her household furniture, her carriage and horses, a growing crop upon a farm she was cultivating jointly with her grandson John Devereux, a small sum of cash in hand, some petty debts due to her, and about sixty slaves. The slaves, as appears in a subsequent appraisement, constituted the principal part in value, very nearly, if not quite, nine-tenths of the whole. In addition to this, she owned a house and lot in Chapel Hill, which she directed to be sold; and she had a power to appoint the unappropriated balance of a fund of $50,000 then in the hands of her son, Thomas P. Devereux. Such was the property of which she attempted to make a disposition. Her will commenced with a declaration of her intention 'thereby to execute all powers vested in (her) and enacted in any deed or deeds theretofore executed, particularly those powers created in her favor by two certain deeds settling and assuring the estate of her late brother, George Pollock, to (her) son, Thomas P. Devereux, dated some time in the month of July, in the year of our Lord eighteen hundred and thirty-nine, and executed by her late husband and herself.' This was followed by her testamentary dispositions. By the first five she gave five legacies of $4,000 each to five several charitable institutions, to each an equal sum. By the sixth item she bequeathed $500 to her executors for a charitable purpose. By the eighth she bequeathed $7,500 to her son, Thomas P. Devereux, to apply the income annually to the payment of certain annuities and charities therein specified; and by the twelfth item she bequeathed $500 for another specified charity. The will contains no other gifts of pecuniary legacies. The aggregate of these is $28,500. Special dispositions are made of her slaves, horses, cattle, hogs, crops, and farming utensils, and of the proceeds of the sale of her house and lot in Chapel Hill,-generally, indeed, of all that she possessed in her own right.
Whether this will was an execution of the power reserved to her by the deed to her son, referred to in the introductory clause,-whether it was an appointment of so much of the sum of $50,000 made subject to her appointment by the deed, as remained undisposed of by her, is the most important question we have now to consider. It must be admitted that the avowal by the testatrix in the introductory clause of her will of her purpose thereby to execute the power was not itself an execution. It is important only as it may shed light upon the subsequent dispositions. A previously expressed intention may serve to explain language afterwards used, and show what its meaning is; but it is one thing to intend a future act, and quite another to carry out that intention. While it is true that whether a power has been executed or not is a question involving a consideration of the intent of the donee of the power, it is equally true the intention must be found in the acts or dispositions of the donee, and not alone in any previously expressed purpose. Prior to the English Statute of Wills (1 Vict. c. 26),-which, so far as it relates to appointments by will, has been enacted in North Carolina,-certain things had been generally accepted as indicative of an intention to execute a power, and as sufficient indications. As expressed in repeated decisions, these were: first, some reference to the power in the will or other instrument; second, some reference to the power or subject over which the power extends; and, third, where the provisions of the will or other instrument executed by the donee of the power would be ineffectual or a mere nullity, or would have no operation if not an execution of the power. The first of these indications, however, must be understood as a reference to the power in the dispositions actually made. In Lowson v. Lowson (3 Bro. C. C. 272), a will expressed to have been made in pursuance of a power which the testator had, was held by the Lord Chancellor not to have been an execution thereof, because the subsequent dispositions were apparently applicable only to his own estate. It may be remarked that Sir Edward Sugden expresses doubts of the correctness of this decision, for the reasons given by Lord Thurlow; but he still lays down the rule, that 'although a will be expressed to be made in pursuance of the power, yet if the testator appears to dispose of his own property only, the power will not be executed by the will.' Sugden, Powers (2d Am. ed.), 364. On the other hand, if the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. After all, an appointment under a power is an intent to appoint carried out, and if made by will, the intent and its execution are to be sought for through the whole instrument.
Turning now to the will we have before us, two things are evident. The first is, that the testatrix did not intend that the pecuniary legacies given for charitable purposes, and to pay annuities, should be satisfied out of her own personal property; and the second is, that she did intend that those legacies should be paid. Substantially all her own property she devoted to other uses. Her horses, cattle, hogs, &c., crops and farming utensils, her carriage, wagon, and all personal property except negroes, in the possession of her grandson, John Devereux, she directed to be sold, and the proceeds applied to the payment of her debts; and she appears to have doubted whether they would be sufficient. Her house and lot in Chapel Hill she ordered to be sold, and directed the sum paid for it to be invested in some productive stock, ordering, however, a payment out of it, and out of the funds arising from the sale of some negroes, to satisfy an annuity of $150 during a life or lives. By these specific appropriations she negatived any right to apply these funds to the payment of the pecuniary legacies mentioned in the first, second, third, fourth, fifth, sixth, eighth, and twelfth items in the will. Nothing of her own personal property, of any considerable value, remained, except her slaves. Six of them she specifically bequeathed. One she ordered to be sold, devoting the proceeds to the distribution of tracts and religious books, and three others were directed to be sold at private sale, and a portion of the avails, if not all, she appropriated to the payment of an annuity. The remainder of her slaves she provided might be taken at a valuation by her son-in-law and grandson, upon their giving bonds for payment of the appraised value in ten annual instalments. These bonds, of course, could not be applied to the discharge of the pecuniary legacies as they fell due. Thus it appears that while she gave pecuniary legacies amounting in the aggregate to more than $28,000, she carefully withdrew from any positive application to their payment the personal estate she owned in her own right. It seems necessarily to follow that, if she intended those legacies to be paid at all, she intended them to be paid out of the fund over which she had the power of appointment. This appears from the testamentary dispositions themselves, independent of any reference to the intention to execute her power, avowed in the introductory clause in the will. And that avowal tends to support the conclusion. It is significant, also, that after she had made a specific disposition of all her own property inconsistent with any application of it to paying those legacies, she refers to their payment again, and uses this language: 'Should it appear at my decease that the bequests exceed the amount of funds left, my will is that the first five only shall be curtailed, until brought within the limits of the assets.' This provision was a reasonable one, in view of the uncertainty there was in regard to the amount remaining of the funds of which she had the power of appointment. We conclude, therefore, that Mrs. Devereux's will was an execution of the power, and an appointment of the fund to her executors. It converted the fund into her own estate, at least to the extent of $28,500, if there was so much of it remaining.
We have considered the case thus far without reference to the North Carolina statute of 1844-45, which is similar to the act of 1 Vict. c. 26 (Rev. Code of N. C., c. 85, sect. 5), for the reason that it may be doubted whether that statute is applicable to this will. Here there is no bequest of personal property described in a general manner, nor even a general residuary bequest, though there are general pecuniary legacies.
Whether, if the fund which remained in the hands of Thomas P. Devereux at the death of the testatrix had exceeded the sum required to pay the legacies given by her will,-that is to say, the sum of $28,500,-the will would have been a complete execution of the power, covering the whole fund, or only a partial appointment of so much as was needed to pay those legacies, it is unnecessary for us now to decide. In the view which we take of the other questions involved in the case, that fund had been reduced so far that there was not more than enough remaining subject to the power to pay the sums bequeathed by the will. The execution was therefore complete, and it appointed the whole fund to the executors of this will, who took it under the appointment as part of the personal estate of the appointor. Upon this subject see Milday v. Barnet, Law Rep. 6 Eq. 196; Hurlstone v. Ashton, 11 Jur. N. S. 724; Hawthorn v. Shedden, 3 Sm. & G. 293.
There was, therefore, error in the decree of the Circuit Court so far as it adjudged that the testatrix, Frances Devereux, did not appoint to her executors the fund over which she had the power of appointment, 'except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her general personal assets after payment of her debts and funeral expenses, and the costs of administering her estate.'
The other questions raised by the appeal require a less extended consideration. The Circuit Court decreed that the 'deed of explanation' executed by Mrs. Devereux in 1845 was effectual, and that its operation was to reduce the annuity of $3,000 charged upon the lands in the deed of settlement of 1839, proportionably as she reduced the $50,000 charged by her appointments, or outlays, so as to make the annuity in each and every year equal to six per cent interest on so much of said fund as remained unappropriated or unexpended by her in each and every year respectively. This, we think, was correct. In 1845 she was sui juris. Her husband had died, and she was competent to release whatever rights she had under her deed to Thomas P. Devereux, or to appropriate to him any portion, or even the whole, of the fund of $50,000 then remaining. The deed of settlement gave her power to dispose of the fund, to give, grant, or direct its payment, investment, or application, at her discretion. If, therefore, there was no mistake in the deed, the subsequent paper ought to be regarded as a release pro tanto of her right to the annuity, and a partial disposition of the fund over which she had the power. If there was a mistake in the deed, it was quite competent for her to rectify it by agreement; and her 'deed of explanation' was a solemn acknowledgment under her seal of the mistake, as effective in equity, if properly obtained, as would have been the decree of a chancellor reforming the instrument. We see not enough in the relation of the parties to each other to justify any presumption that undue influence was exerted over her. The deed of 1839 exhibits the fact that a possible benefit to her son was even then contemplated. It provided that whatever of the $50,000 fund the mother should not dispose of should lapse for his benefit. It was quite natural, therefore, for her to execute a declaration for his relief.
What we have said disposes of the fourth assignment of error, and shows that it is not sustained.
It is next objected by the appellants that the court erred in directing the paper dated Oct. 20, 1846, and signed by Mrs. Devereux, to be treated as a stated account between her and her son, conclusive of all matters of account between them previous to and including the 22d of June, 1846, respecting the $50,000 fund and the annuity, excepting such matters as are by its express terms excepted out of it and reserved for future adjustment. The paper was, in fact, an account stated by a third person, selected by both parties, agreed to be correct by Mrs. Devereux, except in four particulars reserved for subsequent arbitrament. It bears on its face evidence that it was carefully examined and fully understood. After such examination it was signed, and there is no evidence that Mrs. Devereux ever afterwards questioned its correctness. On the contrary, she, in substance, ratified it and acknowledged its correctness at least twice, more than a year afterwards. It is difficult, therefore, to see why it should not be regarded as the Circuit Court directed it to be. It is urged on behalf of the appellants that because the statement was not pleaded, nor set forth in the answer, the defendants were precluded from making use of it when ordered to account. This is overlooking the fact that it was not a bar to all claim for an account. Thomas P. Devereux's liability to account, if it existed at all, continued after the statement was made, to the extent of all subsequent transactions, and for the balance ascertained by it to be due June 22, 1846. It is not set up as a full accounting, but as a partial settlement. It would have been no answer to the complainant's bill if Thomas P. Devereux had said, I have accounted up to June 22, 1846. He denied his liability to account at all; and it was only when that was adjudged against him that he could avail himself of the fact that he had partially accounted, and that fact he could use only in stating the account ordered. We may add that we see nothing in the circumstances attending the statement sufficient to cast suspicion upon it, or to call upon the defendants to support it by extraneous proofs. The relation between Mrs. Devereux and her son, created by the deed of 1839, was more like that of debtor and creditor than that of trustee and cestui que trust. It was no relation of confidence reposed. Similar remarks may be made respecting the second statement, which ascertained the balance due from June 21, 1847. The decree of the court respecting its effect was right.
The remaining exception to the decree of the court is that it denied the liability of Thomas P. Devereux to account, as executor of the last will and testament of Mrs. Devereux, for 'all her personal estate, especially for so much as came into the hands of Seymour W. Whiting as administrator pendente lite or cum testamento annexo.' We think this part of the decree was correct. He was required to account for all the estate that came to his hands; and correctly so required, for he had made himself an executor de son tort by intermeddling with the estate of the testatrix, and by taking most of it into his possession, and undertaking to dispose of it. But he never qualified as executor of the will, or administrator cum testamento annexo, nor was he even administrator pendente lite. As such, therefore, he did not become responsible, and as executor de son tort he was only liable for what came into his hands. Mitchell v. Lunt, 4 Mass. 653; Kinard v. Young, 2 Rich. (S.C..) Eq. 247; Leach v. House, 1 Bailey (S.C..), 42. This is clear, upon both reason and authority.
Our conclusion, therefore, is, after reviewing the whole case, that there has been no error committed, except the single one which we first noticed. For that, however, the decree of the Circuit Court must be reversed, and the case sent back with instructions to direct a new accounting, and to enter a decree in conformity with this opinion; and it is
So ordered.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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