Hess's Executor against Hess, 5 Watts 187

The opinion of the Court was delivered by Gibson, C. J. The implication of absolute ownership from a general power of disposal, may be rebutted by the express gift of a lesser interest which is inconsistent with it. Such is the principle of Morris v. Phaler, and the cases from which it was extracted. But may it not be equally rebutted by any thing else which equally evinces an intent not to give the absolute ownership?

The giving of a lesser interest is but one way of expressing an intent not to give the whole; and an implication from the gift of a disposing power, is not a conclusion of law, but a presumption of intention which stands but till it is repelled by an intention in any shape satisfactorily evinced to the contrary. The matter in hand, therefore, is to inquire whether such an intention is not discoverable in the case for decision.

A father devises to his son a messuage and land, or, to spgak more strictly, disposes of it to him by a testamentary sale for 33%0 pounds, to be thus distributed. 1000 pounds are to be charged on the estate during the son’s life, and paid to his legitimate children at his death. Another 1000 pounds (the money in suit) are also to be charged, and paid to the son’s appointee by will. The testator further directs 266 pounds and a fraction, also to be charged, and the interest to be paid to his widow during her lifetime, or widowhood, the principal reverting to his estate at her death.

He also directs 150 pounds to be paid to the son’s housekeeper, the mother of the plaintiff, and other illegitimate children of the son; and he orders the residue to be paid to the use of bis own estate during the son’s lifetime. The inquiry then is, whether the words of the will limit a particular interest to the son, independent of the disposing power; and if not, whether any thing but a naked power was, in any event, intended to be given.

If an intent to restrain the effect of the power of disposal be not manifest, the ownership of 'the money must be taken to have been merged in the ownership of the land; and the object of the testator .in endeavouring to keep them asunder, will be frustrated — a consequence to be resisted, if it can consistently with rules of law.

It is not expressly said that the son was to have the money for life; but, what is in substance the same, it was to remain in his hands charged on the land; consequently he was entitled to the use of it, had he chosen to raise it in the mean time, or to the profits of it remaining in the land; and as a devise of profits is a devise of the land out of which they are to come, a bequest of interest is a bequest of the principal for the time being.

But there is no express bequest to the son of the absolute property; and a contrary implication of equal force is sufficient to hinder the implication from the general disposing power. It is enough to hold it in equilibrio if an intention to give a particular interest can be collected from all the parts of the will. Now, that the son was to hold the principal free of interest, is clear from the direction to pay interest for the sum set apart in his hands for the use of the widow. The testator knew that to say nothing about interest was to relinquish it.

But as the principal was not to be called for in the son’s lifetime, the particular form in which it might be enjoyed in the intermediate period, cannot be material, it being sufficient that it was essentially the same corpus that was to become the subject of disposition subsequently. This material feature did not belong to the case of Morris v. Phaler, in which the subject of the power was to be the proceeds of a reversionary estate after the expiration of a distinct estate limited to the depository of the power.

Here the money, though not actually raised, was a present debt, and had a legal existence in the hands of the son, being charged on his land as a security; and it is not perceived how even an express bequest of the intermediate use of it, could have made the case stronger; yet it will be conceded that such a bequest would have rebutted an implication of ownership from the appointing power. On that ground, therefore, the construction in favour of the plaintiff might be securely rested.

But that the testator meant not to give the entire ownership is irresistibly manifest from the fact that he thought proper to charge the money on the land. Such-a charge is more decisively evincive of intention than all that can be drawn from the inconsistency of giving a particular interest. To have encumbered the son’s land with a debt to himself, would have been absurd. What would have been the purpose, or what the value, of the security?

It required not the money to be raised out of the land by the father, to enable the son to give it to his illegitimate children if they should be found worthy at their father’s death. That was not the object of the charge, but to secure the money to the testator’s estate in case the son should omit to exercise the power. But the security would be of little avail either to the testator’s representatives or the contemplated objects of the power, if the son could have extinguished it by virtue of a general ownership.

To prevent a consequence so entirely subversive of the testator’s design, it is necessary to say the son had — if not a particular interest — certainly no more than a naked power of appointment. The subject of the son’s testamentary power was a chattel separated from the land by his father’s will. It is scarcely necessary to say, therefore, that the probate of the son’s will was conclusive, and that the evidence to impeach it was properly excluded. Judgment affirmed.