J. J. Faulk and Wife v. Ann R. Dashiell et al., 62 Tex. 642

Walker, P. J. Com. App. Considering first the first ground of assigned error, we are of the opinion that it does not appear from the deed of trust, viewed in connection with the evidence in the case, that it was the intention of W. B. Dashiell to limit the conveyance made in it to his own particular interest in or title to the property described in it.

It would be altogether too close and technical a construction applied to the words “alt my right, title, interest and claim,” under the evidence, for a court having equity jurisdiction to confine their meaning to the right, title, interest and claim of the grantor in-his personal and individual right. It appears from the will that he possessed no other title nor interest in the property than such as he held in his fiduciary relation as trustee under the will.

His deceased wife having died, leaving a will which in express terms devised and bequeathed to her children all of her property, both real and personal, he did not inherit the life estate in one-third of the lands of the deceased, as otherwise he would have done. He therefore had no interest whatever in the land, and the instrument must be construed as being meant to convey the title and interest of some one; and the construction, where the terms used are doubtful or ambiguous, will be given to it which is most strongly against the grantor.

Where doubt exists as to the construction of an instrument prepared by one party, upon the faith of which the other party has incurred obligations or parted with his property, that construction should-be adopted which will be favorable to the latter party; and where an instrument is susceptible of two constructions — the one working injustice and the other consistent with the right of the case — that one should be favored which upholds the right. 1 Wait’s Act. & Def., 124. Citing Noonan v. Bradley, 9 Wall. (U. S.), 395, 407; Barney v. Newcomb, 9 Cush. (Mass.), 46.

And where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he knew or had reason to suppose it was understood by the promisee. 1 Wait’s Act. & Def., 124. Citing Hoffman v. .Ætna Ins. Co., 32 N. Y. (5 Tiff.), 405, 413; Barlow v. Scott, 24 N. Y. (10 Smith), 40.

And when it becomes necessary to inquire into the intent of the parties to a deed, the court will take into consideration the circumstances attending the transaction and the particular situation of the parties, the state of the thing granted, etc., at the time. 2 Wait’s Act. & Def., 504, and authorities there cited. It is obvious that from the application of these rules of construction it must result that the deed of trust was intended to operate upon the right and title of the estate of Mrs. Dashiell in the land; that the mortgagee must thus have understood it when he loaned the money, and that W. B.

Dashiell must have supposed that it was so understood by Beatty at the time. The attendant facts and circumstances negative the idea that the terms “as executor of C. A. Dashiell, deceased,” added to the grantor’s signature, were used as words merely descriptive of the person. In addition to these considerations, W„ B.

Dashiell, in the body of the instrument, purports to act in the premises “ as executor,” etc. lie being vested under the will with the legal title in trust with power to convey, it will be intended by the court in construing the instrument in question, under the attendant facts, that, without regard being paid to the form of expression heretofore referred to, the whole interest in the land that was thus vested in W. B. Dashiell was conveyed by it. The case of Daughtrey v.

Knolle, 44 Tex., 454, is quite analogous on the point under consideration to this case, and the principle there applied seems broad enough to be decisive of the question in this. See, also, Hough v. Hill, 47 Tex., 153, citing Robins v. Bellas, 4 Watts (Pa.), 256; also, see Rogers v. Bracken, 15 Tex., 564. The principle involved and the rule to be followed are clearly expounded in 2 Perry on Trusts (3d ed.), sec. 511 (c), which see; also, Norris v. Harris, 15 Cal., 226. The construction of the powers granted under the will, contended for under the second assigned error, is, we think, correct.

Wills are to be construed with liberality, so as to arrive at the intention of the testator; regarding forms of expression contained in them, or technical terms and words, far less than in deeds, or other formal instruments intended to operate inter vivos. Many of the features of this will are identical with those contained in the will which was construed in the case of Orr v. O’Brien, 55 Tex., 155, which see.

The will in that case constituted the executrix such without bond and independent of the probate court; it gave to her all of the testator’s personal and real estate “ for and daring her natural life, to be applied as she may deem best to the maintenance of herself ” and their children. It provided that in the event of her death, “such of the property as may be left” should be divided equally among the children; and declared it to be the purpose of the testator to make his wife “ the unrestrained controller ” of his property.

Under these powers, without specific designation of authority to sell, it was held, in that case, that an absolute conveyance of real estate by the executrix vested the title. Powers equally explicit, comprehensive and altogether of an analogous character, on the subjects embraced in the other will, are contained in this, as will be readily noticed by a comparison of the two. It seems to have been the intention of Mrs.

Dashiell to unfetter, as far as she might be able to do by the use of apt and comprehensive expressions of her wishes, the discretion of her husband in respect to the management, control and disposition of her property so as to subserve what he might regard as being the interest of their children. The will directs that he shall, for the object which seemed most to interest her,— the future welfare of her children — “manage and control ” her entire estate “ as he may think best ” for the children’s interest.

This desire is again expressed in another part of the will, directing that he shall take charge of said estate and manage and control it for the support, maintenance and liberal education of her said children, followed by directions for the disposition of the residue remaining in the hands of the executor after raising and educating the children. The authority thus conferred by the will confides to the judgment of the executor the mbde by which he shall give effect to the main purposes of the trust.

The will contemplates the necessity of raising money wherewith to support, maintain, and furnish a liberal education to the children, and it anticipates the possibility that in doing these things that a portion and perhaps all the property may be consumed. The management and the control of the property to effect these objects is unrestricted and unlimited otherwise than as the«executor “ may think best.” The exercise of such a discretion as this evidently includes the choice of selling, leasing or of mortgaging the property if necessary, in Ms opinion, to raise money for the objects of the trust. See Orr v.

O’Brien, supra; Danish v. Disbrow, 51 Tex., 235. Where the power is general to perform and carryout a particular object, a resort to the ordinary and usual methods or means comes within the scope of the power. See Layet v. Gano, 17 Ohio, 473; 10 Ohio St., 396; and see 1 Wait’s Act. & Def., 221; Bridenbaker v. Lowell, 32 Barb., 9, 17; Minor v. Mechanics’ Bank of Alexandria, 1 Pet., 46.

And in respect to an assignment or conveyance in trust, which contemplates a necessity for the raising of money, as to pay debts or the like, it seems that in the absence of express directions given in such, if the whole scope of the deed show that the parties must have intended a sale, a sale will be properly made; for, in expounding trusts, though created by deed, the intention of the parties is to be pursued as much as in wills. See Hill on Trustees, star p. 342. The same principle is equally applicable, it seems, to raising money by mortgage. Id.

The general power which the will conferred, to manage and control the property as the executor might think best for the interest of the children, embraced, we think, the power to mortgage or to sell in order to carry out the purposes of the trust; and the only remaining question is whether the will contains any provisions in it which have the effect to qualify or limit this general authority.

It is urged by appellees’ counsel that the general authority conferred was restricted by the terms used in the will which empowered the executor “ to sell, exchange and dispose of ” the estate as he may deem necessary for the interest of the children. We think that these words, instead of being used in a restrictive sense, were intended to render more clear and absolute the authority and power meant tó be conferred in the preceding and subsequent parts of the will which gave the executor full control and management of the estate for the purposes named.

The power “ to sell, exchange and dispose of ” is consistent with the existence of the general powers conferred, and if the character and scope of the latter are varied by the specific designations thus indicated, the effect is to enlarge and extend the executor’s authority of disposition of the property, rather than to contract, limit or diminish it.

The sentence in the will which invests the executor with his powers, directs that he shall manage and control the estate as he may think best, and in terms not less general and comprehensive, and indicative of the testatrix’s wish that her husband should be wholly unrestricted as to the modes whereby he should act in carrying out the purposes of supporting, maintaining and liberally educating her children, proceeds to instance the most absolute power that could be held by him as to the property, viz,: by selling it if he saw proper.

She next provides for exchanging it if he saw proper; and last, in order to embrace any other supposable method of using the property to the children’s advantage, she employs the general expression that he may “dispose of the estate in such way as he, in his discretion, may judge to be necessary for the interest of said children,” and adds that his discretion shall not be hampered by responsibility to any one by reason of his free exercise of it in respect to the powers given to him.

Reading the sentence as an entirety, and not in isolated, detached parcels, it is obvious, we think, that it manifests as a whole a single intention to invest her husband with the most ample power to use, control and in any wise to dispose of the property, and that there is no portion of it which warrants the

interpretation of an intention to restrict or limit the executor’s authority. Language more expressive of her confidence in the ability of her husband to manage the estate, and of her desire to invest him with power to dispose of the property in any way whatever that he deemed best calculated to promote the interest of their children, independent of all direction or dictation of any tribunal, and of responsibility to any person whomsoever, could hardly be used.

We are of the opinion, therefore, that there was ample authority conferred by the will on the executor to mortgage the land; and under a power for purposes so general and undefined as to particulars, the mortgagee would not be bound to ascertain the necessity for the loan to the executor, nor to see to the application of the money. See Hill on Trustees (2d Amer. ed.), p. 480; Danish v. Disbrow, 51 Tex., 241; 1 Wait’s Act. & Def., p. 32S, sec. 3, and authorities there cited; Sanger Bros. v. Heirs of Moody, 60 Tex., 96.

If, however, we are to regard the power conferred on the executor “ to sell, exchange or dispose of as he may deem necessary for the interest of my children,” as a limitation upon the authority otherwise given in the will, it seems that the result must still be the same. Under a power to sell lands for the payment of debts, a mortgage, it seems, may be given to raise money for that purpose, unless it be the clear intention of the testator, in directing the sale, that his real estate should be absolutely converted.

And although there may be no specific direction for the sale of the estate, but only a trust to raise or to pay debts; or a devise subject to or charged with debts; or the debts and legacies being first deducted,— in all these cases the trustees may properly raise the required amount by sale or mortgage, without waiting for a decree. Hill on Trustees (2d Amer. ed.), pp. 499, 500 (star p. 355). It is laid down in many cases that a power of sale implies a power to mortgage. See Gordon v. Preston, 1 Watts, 385; Lancaster v. Dolan, 1 Rawle, 231; Williams v. Woodard, 2 Wend., 492; Duval’s Appeal, 38 Pa.

St., 118; Steifel ct al. v. Clark, 9 Bax. (Tenn.), 470. See, also, 4 Kent’s Com., 148; 3 Rawle, 109; 2 Wright (Pa.), 118; Zane v. Kennedy, 73 Pa. St., 182. And see numerous other cases collected and synopsized in a note in Ferry v. Laible, 31 N. J. Eq. (4 Stew.), 567 et seq. In some other cases this doctrine has been denied, and in its application subjected to considerable modification. See Hill on Trustees (2d Am. cd.), note 1, p. 499; and see Bloomer v. Waldron, 3 Hill (N. Y.), 361; Ferry v. Laible, 31 N. J. Eq. (4 Stew.), 577; Page v. Cooper, 16 Beav., 396; Wood v. Goodridge, 6 Cush., 117; Albany Fire Ins.

Co. v. Bay, 4 N. Y., 9; Coutant v. Servoss, 3 Barb., 128; Tyson v. Latrobe, 42 Md., 325; Hubbard v. German Catholic Cong., 34 Iowa, 31. Without attempting to indicate which of these lines of decision should be accepted as furnishing the proper rule to follow, it is sufficient to say that, under this state of the law upon the point, the testatrix might well have supposed that in conferring the power “ to sell ” the authority was conferred thereby to mortgage the property. But she extends still further the specifications of authority given to her husband.

If it was her intention to limit it to that of selling, and to exclude the power to mortgage or to incumber, it would have been but superfluous redundancy to have added the authority “ to dispose of my estate as he may deem necessary for the interest of my said children.” Effect should be given to every part of the instrument if. it may be done consistently with the intention of the testatrix and with its other parts. In Gordon v. Preston, 1 Watts (Pa.), 386, on the question whether a certain incorporated company had under its charter power to mortgage, Gibson, c. J., said: “By the second

section of the act of incorporation the company was authorized to purchase in fee or for any less estate ‘all such lands, tenements or hereditaments, and estate real and personal, as shall be necessary and convenient for them in the prosecution of their works; and the same to sell and dispose of at their pleasure.’ According to the principle of Lancaster u. Dolan, 1 Eawle, 131, a power to sell includes a power to mortgage, even under the statute of uses, though strictly construed; and a, fortiori it ought under a statutory grant which is to be beneficially construed in furtherance of the object.

But the superadded words “ dispose of,” which would otherwise be redundant, leave no doubt of the existence of an intent to give the corporation power to part with its real estate by any voluntary act, without regard to the mode of its operation; and as a power to incumber might be necessary to the prosecution of its works, it is not to be doubted that it was intended to be given.” Nor is there less doubt, for the same reasons, that Mrs. Dashiell intended to confer, by- the use of the same term, the powers which were accorded by the opinion of Chief Justice Gibson to the incorporated company.

Whilst it- may be true that those words might not in every supposable connection and relation, when employed in written instruments, import such extended authority, and might according to the subject-matter upon which they are to operate, and under all the circumstances existing for their

interpretation, be limited to narrower bounds in their

interpretation, yet, in the connection and relation in which they are here presented — “in furtherance of the objects ” for the accomplishment of which the testatrix, as manifested by the whole will, was endeavoring to provide,—we think it clear that the power conferred by the use of those "words place it beyond dispute that the executor was fully authorized to mortgage the land. [Opinion adopted December 16, 1884.] We must look to all parts of a will to ascertain the intention of the testator. Vardeman v. Lawson, 17 Tex., 18.

Under this rule of construction discrepancies and seemingly contradictory or repugnant clauses of it will be reconciled, and thereby effect given to what were the true intentions and wishes of the testator. See Wells v. Slater, Tex. L. Rev., 121 (unreported case). For the errors indicated, we conclude that the judgment ought to be reversed and rendered by the supreme court in favor of the defendants.

The cause having been submitted to the court without a jury; the facts not being controverted which involve the merits of the suit, and presenting only a question of law as to the rights of the respective parties to the suit; and there being apparent no reason why the trial below should not finally determine this suit, we are of the opinion that the supreme court ought to render on this appeal such judgment as ought to have been rendered on the evidence adduced at the trial, which, as. above indicated, ought to be for the defendants. Reversed and rendered.