Beakey v. Knutson

¶11, 2. The dispute is to be solved by a proper construction of the will in question. It is elementary that the whole instrument must be taken together knd construed so as to effect the intention of the man who executed the writing, owned the property and had the power to dispose of it. We cannot adopt a process of dialysis, taking here a part and there a part of the document, and base our conclusions on any single clause. We must assume that by every*578thing he put into the writing the testator meant something and had a purpose for his utterances. If possible, the several clauses must he made to harmonize, and, above all, we must give effect to the intention of the testator as enunciated in the instrument under consideration.

¶23. Taking the instrument by its four comers, one of the most prominent features, indeed the one fairly paramount in its terms, is the purpose to educate, maintain and nourish the three children until the youngest shall have arrived at the age of majority. To effectuate this purpose the devise is made to an artificial and not to a natural person; the executrix is made the conduit by which the estate is to he applied to the objects delineated in the remaining parts of the will. It is plain that the wife, in her character as such, could not sell the property, even for the satisfaction of the debts of the estate. All disposition of its assets must he made by the executrix in her official capacity. As stated in Pratt v. Douglas, 38 N. J. Eq. 516, 534:

< í There are no words in the will which authorize her to sell and dispose of the testator’s property for her own use. On the contrary, the power of sale over his estate, real and personal, expressed in the will, is given to her as executrix, which implies a fiduciary disposition of the proceeds realized from the sales, inherent in the office, in virtue of which she was to exercise the power.”

¶34. It is urged that the language of the will respecting what was to he done with the property amounts to mere precatory words. It is true that such words as “desire” and “request” are often held to have such signification. Even they, however, are controlled by the intention of the testator, so that as stated in Wolbert v. Beard, 128 Wis. 391 (107 N. W. 663):

*579“When words of recommendation, request or the like, contained in a will must necessarily be followed in order to' carry out the clear purpose of the testator they are to be regarded as words of command or direction.”

¶45. But we are not thus restricted in our efforts to discover the true meaning of the will before us. After expressing his desire that the executrix should sell the property, the testator says:

“I direct and request that she use such or all of the money which may be the proceeds of any property she may sell.”

¶5The term “direct” is mandatory in its signification. It means “to point out with authority or direct as a superior; to order; to instruct; to command”: 14 Cyc. 291. The term is substantially synonymous with “require,” which was construed to be mandatory in Curd v. Field, 103 Ky. 293 (45 S. W. 92).

¶6It is plain that the only private or personal interest conferred upon the individual who was appointed to act as executrix is that described in the fourth clause of the will, requiring the division of the property into four parts when the youngest child shall have arrived at the age of 21 years. Then, and not until then, would the widow become entitled to anything in her own right. No one would contend that if the wife and mother had died before the testator, or had refused to qualify as executrix, and there had been appointed an administrator with the will annexed, the latter would have been authorized to sell or pledge the property or any part thereof for his own personal benefit. We conclude, therefore, that it is only in a fiduciary character and capacity that the executrix is to have anything to do with the estate.

¶7*5806. It is stated in McDuffie v. Montgomery, 128 Fed. 105, 108, concerning a precatory trust:

“Tersely stated, that rule requires: (1) That the words used must he such that it shall appear from them that they were intended in. an imperative sense. (2) The subject of the recommendation or wish must be certain. (3) The object thereof must he certain.”

¶8In the instant case, aside from the word “direct” as used in the will, the other terms are so plainly indicative of the testator’s intent that it is clear they were used to express and enforce his determination concerning the disposition of his property, in a mandatory sense. The whole estate is the subject of the recommendation and the object to which it applies is clearly expressed, to wit: the maintenance and education of his offspring. Thus the rule as stated in the case from which the excerpt is quoted is plainly applicable in the present instance. We hold, therefore, that a trust for the benefit of the children and in a residuary sense in favor of the wife was marked out by the will: Pratt v. Miller, 23 Neb. 496 (37 N. W. 263).

¶97-9. It remains to be determined whether the transaction set forth in the complaint is a proper administration of her trust. The essence of her doing was that she and her second husband borrowed money for which they gave their individual promissory note. As an incident to that indebtedness they gave the mortgage upon the realty as if it were the property of at least one of them. Beyond controversy, the will did not give the executrix power to borrow money on the credit of the estate. The second clause, conferring upon the executrix “authority to sell, dispose of and use in any way she may deem proper all my said property” is framed in general words and is to be governed by the *581particular words found in the third clause, where the testator says,

“I direct and request that she use such or all of the money which may be the proceeds of any property she may sell.”

¶10It is a maxim of construction that general words are controlled by particular words on the same subject, which principle is applicable to the instant case in the following manner: General power of disposition is given in the second clause, but when in the third clause he comes to particularize and “direct” and prescribe from what she must derive the money to carry out the main purpose of the will, the testator says it must come from the sale of the property. This excludes any right to mortgage the same. But, returning to the second clause, the meaning of the word “dispose” is settled by the ease of Trutch v. Bunnell, 11 Or. 58 (4 Pac. 588, 50 Am. Rep. 456), where the court, speaking through Mr. Justice Waldo, says:

“The power, generally, to sell or dispose of the real and personal property of minors, whether conferred by a testator by will or upon a court by a public statute, confers no power to mortgage.”

¶11See, also, Neilson v. Alberty, 36 Okl. 490 (129 Pac. 847). In Rutherford Land Co. v. Sanntrock, 60 N. J. Eq. 471 (46 Atl. 648), the court stated:

“To ‘dispose of’ imports finality and only where a power to sell would include a power to mortgage would those words, unmodified or undefined, imply such a power.”

¶12It is elementary in this state that a mortgage conveys no title. It is not a finality of disposition of property. The title remains in the mortgagor. It is not included in the term “dispose of.” The execu*582trix, therefore, is restricted in the administration of her trust, so far as the will is concerned, to a sale of the property, and that only for the purpose of nourishing, caring for, maintaining and educating the three children of the testator.

¶1310-12. The complaint charges in substance that the money borrowed and secured by the mortgage was not used by either Mr. or Mrs. Harris for the purposes of the will, but that it was expended for their individual use and benefit. It is true that one who pays money on a legitimate transfer of property by an executor or trustee is not bound to see that it is rightly applied. On the other hand, he can take nothing by his participation in a transaction which appears by the record to be unauthorized. The scope of the power of the executrix and the manner of its exercise are prescribed by the will and anyone dealing with or for the assets of the estate is bound to take notice thereof, for the document is proved and of record.

¶14Whatever the executrix might do under the terms of the will, she is not authorized to confederate with a new' matrimonial consort and hypothecate the testator’s estate for the benefit of herself and her new mate. The Circuit Court was wrong in sustaining a demurrer to the complaint, for it does state facts sufficient to constitute a cause of suit. The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

¶15Reversed and Remanded.