#### *Wiley Pulliam et al.*v. *Thomas B. Byrd et al.*

Columbia,

May, 1848.

Testator, by his will, left to his wife a life estate in his whole property, with power to dispose of one-half at her death; and she died without having made any appointment under the power; *held,*that at her death, the whole property, as intestate, became distributable, one moiety to the next of kin of the testator, and the other moiety to the next of kin of the wife.

Where there is a gift to one for life, with a general power of appointment, the power of appointment does not enlarge the life estate into an absolute interest, and nothing passes under the clause conferring the power, unless it be exercised. The title acquired from an Administrator at a sale ordered by the Ordinary, is a good title, which a co-distributee of the intestate is as much at liberty to purchase and to depend on as any other person.

*Before*Johnston, Ch. *at Abbeville, June Sittings,*184?.

Johnston, Ch. The leading questions in this case originate in the will of James Pulliam. This testator died the —— of-1832, leaving the following very laconic will:

*135“My will and desire is that after all my Jest debt Is paid That all my probity Rale and personal Shall Remane in the hands of my beloved wife during her natural life and that1 she shall have the disposial of one half of it at her death.

“I nomenate Constitute and appinte my Beloved wife Rhody Pulliam Executrix and my Belov’d friend JZachrey Pulliam my Executor to this my last will an Testament in Witness Whareof I have heareunto set my hand and seale this March one thousand Eight hundred and twenty three.”

At his death the testator left the children of a brother and the children of a sister, with his wife, Rhody, surviving him. And he left a tract of land and several slaves, mentioned in the pleadings, together with other personal property and assets.

The Executor and Executrix named in the will having declined their appointment, the defendant, Thomas B. Byrd, was duly appointed and qualified as administrator, with the will annexed, and assumed the duties of his trust.

After selling, under an order of the Ordinary, a portion of the perishable property, and also one of the negroes, named Leah, he turned over the rest of the estate to the widow, Rhody ; to whom he also paid over $1048 34, the balance of the proceeds of the property sold by him, after paying the debts of the testator, as appears by her receipt produced before the commissioner, bearing date the 3d of June, 1834.

Rhody, the widow of the testator, died intestate the of June, 1846 : and Byrd became her administrator. She left several next of kin.

Upon her death a contest has arisen between her next of kin and the next of kin of James Pulliam, the testator, in relation to the interest which she took under his will: and the statement I have made will enable us to take up the genera], questions presented at this stage of the case.

The *next of kin of the widoio*contend, that the words of the will are sufficient to give her one half of the estate absolutely ; and that the other half is given to her during life, but not disposed of beyond her life, wherefore the remainder in this latter half after her life estate, is intestate estate of Pulliam, the husband ; and by the statutes of intestacy she is entitled to a moiety thereof, the other moiety going to Pulliam’s nephews and neices. The sum of this is that a claim, on her behalf, is set up to 3-4ths of the estate.

The *next of kin of the husband*contend, on the other hand, that no part of the estate is *given*to the widow, even for life, but the words of the will amount only to a direction to the executor to allow her the use of it; that as to one half, a naked power of appointment was conferred on her, to be exercised at her discretion, and that having failed to exercise it, that half, as well as the other half, of the estate was distribu*136table as intestate estate, in equal moieties, between the widow, an¿ nephe^-g and neices of the testator; but as she had the usufruct of the whole, during life, with a power of disposing one pa^ SUSpended the distribution until her death; when her distributive right vested in her next of kin, who thus became entitled to one half of the whole estate; the other half belonging to the next of kin of her husband.

4 Kent 353 Sect. 53. ’

These were the grounds seriously taken by the husband’s next of kin. To be sure they did suggest other views ; but it seemed to me they placed little dependence on them. Such, for instance, as this: that the usufruct given to the wife in the whole estate, operated to prevent her from setting up any claim as to the estate after her death, considered as intestate. That no part of the estate descended until after her death, and then descended exclusively to the testator’s next of kin. That if any part descended at his death, it was the half over which no power was given to her; and of course she could take only a moiety of that. That as to the other half, to which her power was attached, it could not descend (the power prevented it from descending) during her life; and when it descended, at her death, it was distributable-among Pulliam’s next of kin, &c. But I considered these pretensions as beyond the serious opinion of the counsel. It was too clear to admit of doubt,- that if there was nothing to prevent the estate from descending (using that word for want of a better,) but the wife’s usufruct and her power of disposition, it descended at the death of the testator, subject to the usufruct and her power; and as to the wife’s being excluded by the interests she took under the will, from claiming by intestacy also, the law was too well settled to be otherwise, to admit of argument.

Coming back, therefore, to the real questions in the case:— it will be seen that the contest is whether the widow was entitled to 3-4ths or only to *1-2*of the estate that became distributable, as intestate, at her death.

As to one half of the estate, it is clear that there is no provision in the will in relation to it, beyond the giving the wife a life estate, or allowing her the usufruct during her life. This half, subject to her interest in it, was clearly distributable; she taking one moiety and Pulliam’s next of kin the other.

And the same rule must apply to the other half, unless there is something in the provisions relating to it, to prevent.

The question which first naturally arises, in considering this point, is what is the nature and extent of the grant made by the testator to his wife ; for if is settled that whatever he did not grant remained in him, and reverted to his heirs and distributees, after the dispositions actually made by him were over.

Then, do the words of the will admit of a construction *137vesting his property in the wife, during life, as her property: or did it remain his property, and parcel of his estate, subject, only to her enjoyment of it for life, and subject to a power of appointment, to be actively exercised by her, by which she might, as his agent, transfer it to other persons, at her death ?

Croft us. Stu. 4 Yes. 66.

If the property was given to the wife for the period of her life, to be her property, with a power to dispose of one half of it, at her pleasure, beyond her life; such a grant falls, as to that half, within all the definitions that can be conceived of an absolute title.

But if the testator intended to give her the mere enjoyment of the whole, for life, with a power, (however unlimited,) of disposal as to one half of it, at her decease, she never had a title to any part of the estate, and her power of disposal was a naked power, requiring to be exercised in order to convey a title from the testator, (for the title was in *Mm,*upon this supposition,) after her death.

This distinction is very important here, for as the wife never exercised her power, it is only upon the assumption that the title Avas in her, that it can be held to have devolved, by operation of law, upon her next of kin, at her decease.

If the right of property remained in the testator (s5 to speak) nothing could take it out of him, but such an actual exercise of the poAver as would constitute the appointee a devisee or legatee under the will, claiming under the testator and not under the appointor: — for all the cases say, and upon the soundest principles, that the instrument evidencing an appointment, in such cases, is to be considered as parcel of the will of the testator: and that the appointee takes from him and not from the appointor; the latter being merely the agent of the former, acting under a power of attorney, authorizing him to make a will, *quoad hoc,*for him.

The principles of law are clear enough, but when I come to apply them to this will, I experience considerable difficulty.

It is argued that there are no words in the will creating an express life estate, or vesting the title, even for a moment, in the Avife. That the words employed are very inappropriate to that purpose. That the direction of the testator that his property remain in his wife’s hands until her death, is indicative rather of a negative than of a positive intention. That they do not so much indicate an intention to give to the wife, as to abstain from giving to her; or indeed to any other person, at least during her life. That the testator does not *give to*her, nor even *lend:*— he makes no positive disposition Avhat-ever, in her favor. And that it is impossible, upon any safe construction, to make out of this mere inaction on the part of the testator, any color of right or property in the wife, to be connected with the power given her, so as to make it any thing else than a naked power.

*138But, on the other hand, it is impossible to read this will without being struck with the liberality of the testator to-wards his wife. Whatever may be the legal effect of the termg he employs, they show that he intended her to have the enjoyment of his whole estate during her life, with the fullest power to dispose of half of it, beyond her life, without limitation as to the mode or object of the disposition.

Now, the dominion and control thus given was, as to one half of the estate, precisely the dominion and control of an owner. No owner could have greater. As the enjoyment and use were given to herself during her life, it follows that the superaddition of an unqualified power of disposition beyond her life, gave her the same latitude of disposition during her life also. It would not have been so, if the enjoyment or right of possession, during her life, had been given to a third person. But being given to herself, and not to a stranger, it is so. For supposing her to have alienated or to have injured the property during her life, no stranger could complain: and supposing that the distributees of the husband had interfered with her for the wrong: how easy would it have been for her to silence them, and practically demonstrate the impertinence of their clamour, by bringing into exercise her power of ulterior appointment ? And if any objection arose because the property remained at the time in common, how easy to have removed that objection by a partition ? What objection could the next of kin have interposed to the partition of the estate ipto moieties, that the wife might do what she pleased with one of them ?

Here, then, was the right of enjoyment and of free disposition during life, and afterwards, in perpetuity. What is this but absolute property ?

Nor is so much dependence to be placed in the mere words of the will, as was placed in the argument. Whether a *life*estate was given, does not depend entirely on the words employed. Any form of expression by which the incidents of title or property are created and secured, will serve to confer title or property. For what purpose could the testator have given the enjoyment for life, if not to secure the benefits of a life estate ? to confer all the interests which could have been conferred by creating a life estate in express terms? And when a life estate is created in terms, and to this is added a power of ulterior disposition, unconfined as to mode or object, no case has been produced suggesting that this power is a naked power, and requiring to be executed in order to divest the grantor of the fee. Such a power, united to such an interest, is not a power requiring to be actually executed: but the two together are descriptive of the most absolute title known to the law.

It will be very proper that such a, question as this should be *139carried to a higher Court; and as I anticipate that it will be done, I abstain from further remark. My conclusion is, that as to one moiety of the testator’s estate, the wife took an absolute estate under the will; and that she took one half of the other moiety, as intestate, under the statute: and that these, amounting to three-fourths of the estate, are distributable among her next of kin. The remaining fourth is distributable among the next of kin of the testator.

This does not cover the slave Leah. There is a question in the case respecting her. She was sold by Byrd, the testamentary administrator of Pulliam, in 1832, to one Forshee, for $400. This was a public sale, ordered by the Ordinary. The administrator received the purchase money from Forshee, and included it in his returns upon the estate in January, 1834. Forshee held the slave for twelve months, and then sold her (she then having a young child, or being on the point of having one,) to Rhody, the widow of the testator, for $500. Mrs. Pulliam, about three years afterwards, sold her, with whatever children she had, to one Coleman, for about $1200 ; who after holding them two or three years, being about to remove out of the State, resold them to Mrs. Pulliam, at an advance of 300 dollars, over what he had given her for them. This slave (and her said issue, I suppose,) are claimed as parcel of Pulliam’s estate. It is said that there was no necessity?»! the part of the administrator to sell her. That the debts of the testator did not render it necessary; because, as the result proved, the administrator raised $1048 beyond the amount of the debts ; and must, therefore, have had an excess of over 600 dollars in his hands before he sold this wench. Suppose this to be so; what has it to do with, the title to the negro? Forshee, it must be admitted, got the legal title of the administrator, and, so far as appears, without any notice of the equity now set up to avoid the sale. How was he to know whether the administrator was selling an unnecessary amount of property? How does it appear that Leah was sold, after, and not before, the necessary amount was raised ? If Forshee got a good title, Mrs. Pulliam got his, and it was matured by a most abundant possession.

But then it was said “ she bought with the sum paid over to her by the administrator in June, 1834.” This sum was $1048, and included the price at which Leah was unnecessarily sold. It appears, by the testimony, that about the time and after she received the $1048 from the administrator, she paid out to distributees of Pulliam, now raising this claim, $820 of the money; leaving only $228 in her own hands: and it appears, also, that her crops enabled her to raise the $500 at which she purchased from Forshee. But passing all this by, and conceding that she not only had notice of the .excess committed by the administrator, in the sale, but assist*' *140ed in it (which is not surmised) is it necessary *to*quote author:¡ty- to show that that does not affect Forshee’s title, which she was as much at liberty to purchase and depend on, as aUy other person? This claim is therefore overruled.

There is a report of the Commissioner in the case: and if it were as full in its statements and details as it should be, it would have saved a great deal of trouble. I have to search through the whole record for facts which I should find in the report. I know that, if this had been anticipated or suspected by this officer, his report would have contained a clear statement of the case, and of every fact, with day and date, necessary to understand the report and the exceptions to it. A report should be self-explanatory, and explanatory, also, of all points to which the exceptions refer.

As it is, I have endeavored in vain to get the facts together, which are necessary to adjudicate the exceptions. I suppose I had a proper conception of them from oral statements made at the argument: which, but for my illness shortly afterwards, I might now recall. But I cannot recollect them; and cannot get them from the report.

It is therefore recommitted.

Parties are at liberty to prepare any order upon which they may agree, or which may be necessary to carry out this opinion. The costs to be paid out of the estate of James Pul-liam!

The complainants appealed, and moved to reverse the decree of his Honor, on the following grounds :

1st. It is submitted that the widow, Rhody Pulliam, could not, under the will, take an estate for life in the whole property, and at the same time one half of the reversion in fee, as dis-tributee under the statute.

2d. It is respectfully submitted, that under the will *“no*part of the estate is given to the widow, even for life,” but only the *possession,*with a merely superadded power of appointment as to one half at her death. She had a power only and not an interest.

3rd. If any estate at ail be given to the widow, it is an express estate-for life in the whole, and the mere superadded power of appointment as to one half, whether limited or unlimited, does not enlarge it to a fee.

4th. That the widow’s power of appointment under the will, is not, as regarded by his Honor, “ unlimited and unconfined as to mode ■” and if it be so, the bequest to her of an express estate for life, even with an unqualified power of ap-pointihent, superadded, does not, as is assumed, give her afee.

5th. If the next of kin of the widow be entitled to any thing, they. can only claim the portion which she may have taken, as distributee under the statute.

*1416th Because the slave Leah and her increase should still have been regarded as part and parcel of the estate of James Pulliam, deceased. ’

WilsoN, lor the motion.

Perrin & Thomson, contra.

Dar gan, Ch.

delivered the opinion of the Court.

James Pulliam died in the year A. D. 1832, leaving some real and personal estate, which he disposed of by his will, which was duly executed. The will is remarkable for its brevity, and is couched in language which shews that the testator was a very illiterate person. The disposing part of the will is in one sentence, and is as follows: “ My will and desire is that after all my jest, debts is paid that all my probity Rale and personal shall remain in the hands of my beloved wife during her natural life and that she shall have the disposal of one half of it at her death.” The will concludes by appointing testator’s wife, Rhody Pulliam, executrix, and his friend Zachary Pulliam, executor. The executor and executrix named in the will having declined the appointment, administration with the will annexed was granted to Thomas B. Byrd, who, having qualified, assumed the duties of his trust. At his death, the testator left the children of a brother and a sister, and his wife, Rhody Pulliam, surviving him. He also left a tract of land and several slaves, mentioned in the pleadings, and some other personal property and assets. Rhody Pulliam died in June, 1846, intestate, and Thomas B. Byrd administered upon her estate. She also left several next of kin, who, with Byrd the administrator, are the defendants in the bill, which is filed by the heirs at law and distributees of Jam&s Pulliam, for a partition of the land and negroes devised and bequeathed to his wife Rhody Pulliam in the clause of the will already recited.

For the next of kin of the widow it is contended, that the will gives her an absolute estate in one moiety, and a life estate in the other, and that the whole of the former is distributable among her relations as her own estate, while the moiety in which she took a life estate, after the termination of the life estate is intestate property of James Pulliam, of which she, as widow, is entitled to half, which on her death must go to her next of kin; thus constituting in them a valid claim to three-fourths of the lands and negroes which were of the estate of James Pulliam. On the part of the heirs and distri-butees of the husband it is urged, that the will gave to the widow a life estate in the whole of the testator’s property, with a power of appointment as to half, and that the widow having failed to execute the power of appointment, the whole property that passed under the will, on her death becomes the intestate estate of James Pulliam, of which they are enti-*142tied to one moiety, and the defendants, as the representatives of the widow, are entitled to the other moiety.

Barford v. Street, Irwm’v. Par-rer, 19 Vesey. 86-Vesey, 451.

The Chancellor who heard the case adopted that construe-t¿on was presented in behalf of the next of kin of the wife, and by his decree gave them three-fourths of the estate, and the next of kin of the husband one fourth thereof. And this is an appeal from that decree on the part of the complainants, who are the heirs at law and distributees of the husband.

The only question which this Court deems it necessary to consider, will be presented and discussed in the remarks which I am now about to submit. The decision must turn upon some nice and rather artificial distinctions, and an appeal be made to the authorities for the purpose of ascertaining the principle which has governed the Court of Equity in the determination of questions of this character.

Upon what appears to this Court to be a correct construction of this will, the wife took an estate in the whole property, which by the terms of the will is limited to her life, with a general power of appointment, as to the other moiety, without restriction as to time or mode for the exercise or execution of that power. And if the estate had not been limited to her life, there is no doubt that she would have taken an absolute interest in one moiety. For the proposition is undeniable, that a devise or bequest to one generally and indefinitely, with an unlimited power of appointment, gives an absolute estate. But though the view taken by the Chancellor his decree is not unsupported by authority, it appears from t'le general current of decisions and the opinion of eminent jurists, that where there is a gift to one for life, Avith a general power of appointment, the power of appointment, though genera^ does not enlarge the life estate into an absolute interest, and nothing passes under *the*clause conferring *the power,*unless it be executed. As was said by Sir William Grant in the case of *Bradley*v. *Wescott, “*the distinction is perhaps slight, Avhich exists betAveen a gift for life, with a power of disposition superadded, and a gift to a person indefinitely, with a superadded power to dispose by deed or will. But the distinction is perfectly established, that in the latter case, the property vests. A gift to A, and to such persons as he shall appoint, is absolutely property in A, without any appointment. But if it is to him for life, and after his death to such person as he shall appoint by will, he must make an appointment to entitle that person to any thing.” This manner of stating the proposition is in conformity with the opinion of this Court, and the distinction drawn, though narrow and refined, is fully sustained by the decided cases. It is unnecessary to enlarge upon a question, the decision of which rests so entirelyupon authority. Nor is it necessary to encumber this opinion by a *143reference to the numerous authorities which might be cited in support of it. It will be sufficient to say, that the distinction here recognised is sustained by the most eminent authors on Powers, and by a very uniform current of decisions.

In reference to the complainants’ last ground of appeal, this Court concurs with the Chancellor in the views which he has taken, and for the reasons stated in the decree.

It is ordered and decreed, that the decree of the Chancellor be modified, and that the complainants, as heirs at law and distributees of James Pulliam, are entitled to one-half of the real and personal estate described in the bill, and which was given by his will to Rhody Pulliam for her life. In all other respects the decree of the Chancellor is affirmed and the appealed dismissed.

Johnston, Ch. Dunkin, Ch. and Caldwell. Ch. concurred.

*Decree modified.*