Ex Parte Britton , 39 N.C. 35 ( 1845 )

The case was as follows: A petition was filed in the court of equity, under the statute, for the sale of a tract of land, for partition among tenants in common. The sale was decreed; and when it was reported, the purchaser opposed the confirmation of it, upon the ground that the petitioners' title was not good. It was thereupon referred to the master to inquire and report upon the title; and he reported that it was conceded by the purchaser that the title was good, if Martha M. R. Brownlow, wife of Tippo S. Brownlow, could limit and appoint the land, by deed attested by two witnesses, under a power vested in her by a deed for the promises, made by William W. Wilkins to Mark H. Pettway — of which he annexed a copy to his report. The master also annexed to his report, a copy of the appointment made by Mrs. Brownlow, by deed attested by two witnesses, to one William B. Lockhart, from whom the petitioners derived their title. The deed from Wilkins to Pettway is, "upon trust to receive and pay over the rents and profits of the land unto Mrs. Martha M. R. Brownlow, to her sole and separate use, free and discharged from any contract or claim of her husband, Tippo S. Brownlow; during the natural life of the said Mrs. Martha M. R. Brownlow; and, after her death, in trust to convey the said land unto all the children of the said Mrs. M. M. R. B. that shall be living at her death, equally to be divided between them; that is to say, only in default of any such appointment by said Mrs. M. M. R. B., in nature of a will, during her lifetime, as is hereinafter mentioned. But if the said Mrs. M. M. R. B. shall make any appointment in writing, witnessed by two witnesses, therein appointing or giving said land to any person or persons whatsoever, then in trust to convey said land to such person or persons as the said Mrs. M. M. R. B. may appoint or name, by or in any such appointment in writing as aforesaid, or in (37) anything executed by said Mrs. M. M. R. R. as aforesaid."

The only question was, whether, under that provision in the deed made by Wilkins, Mrs. Brownlow was not restricted to an appointment by will, or an instrument in the nature of a will; or whether she might not also appoint by such deed as that to Lockhart. The master submitted that question to the Court, and a declaration pro forma having been made that the title was not good, the petitioners were allowed to appeal. As our brother DANIEL does not sit in this case, the other members of the Court have considered the question, and are of opinion that Mrs. Brownlow's appointment by the deed to Lockhart, which is attested by two witnesses, is effectual. The deed, containing the power, is obviously drawn by one who was but little versed in the form of such instruments, and who bungled in putting the different parts of this instrument together, probably, from some book of forms. For example, it says the land is to be equally divided between the children of Mrs. B., "only in default of any such appointment," though that is the first time that appointment is spoken of in the instrument. It is obvious that no effect will be allowed to the subsequent provision for an "appointment by writing, witnessed by two witnesses," if the execution of the power is to be by will alone. Yet the court has no authority thus to strike out one provision for the sake of the other; but it is proper to give effect to the whole, if it can be done, by understanding the two clauses in such a way as to make them consistent. Perhaps that may be done in this case. Thus there is, first, a provision for Mrs. Brownlow's children to take equally at her death, in default of her making an appointment in nature of a will; and then, secondly, there is a provision for appointing or giving to any person or persons, in a writing (38) witnessed by two witnesses. Now, children, or a particular child, may often exercise great influence over a mother, and might induce her, at an unguarded moment, voluntarily to appoint the land to some one or more of them, and thereby strip herself of her support from the profits of the land, and deprive her of the power of providing for another child, who, before her death, might turn out to be more needy; and it has occurred to us, that possibly the writer, being aware of these things, might have meant that, as to appointments among her children, which he took for granted would be voluntary, this lady should take her whole life for binding herself and concluding her other children, and therefore prescribed a will as the mode of appointing to those persons. But the same reasons did not apply to a disposition, by sale or otherwise, to any other persons besides the children; and, therefore, she was allowed to make such latter appointments by an act inter vivos, provided only it was in writing and attested as prescribed, as protection from fraud and perjury. We do not see how, otherwise, the different parts can stand together; unless it be, that the two sentences are to be treated as one, and read as if allowing an appointment to any person, whether a child or not, either by will or by any other writing, duly attested. Rather than render either provision wholly ineffectual, it would be the duty of the Court thus to blend them, as best effectuating the general intention. But it is sufficient for the present purpose, as Lockhart was not a child but a purchaser for value, to say, that the deed, by a fair construction, authorized such an appointment to be made by deed duly attested, as well as by will.

The decree was therefore erroneous, and ought to be reversed, and the title declared good, and the purchaser required to complete his purchase.

PER CURIAM. ORDERED TO BE CERTIFIED ACCORDINGLY.

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