Yates v. Clark

Citations

• 56 Miss. 212

Syllabus

<p>1. Will. Power therein construed. Case in judgment.</p> <p>R. 0. died, leaving a will, the body of which was as follows: “ I hereby appoint my wife, B. 0., my sole executrix, without bond or accountability to any one, to have, use, and employ all my property, real and personal, for her own and the use of her children, and [to] dispose of the same in such manner as she may thinlc is for their mutual advantage.” Held, that this will made the widow the donee of a power to dispose of all the property, real and personal, of the testator, in her discretion, for the mutual advantage of herself and her children by the testator. She was made the sole judge of “their mutual advantage,” and her power of disposing of the property was unlimited. The power was vested in her as an individual, and not as executrix.</p> <p>2. Executrix. Failure of husband to give bond, under Code of 1857.</p> <p>Where a widow, having qualified as executrix of her deceased husband’s will, marries again, and her husband fails to give bond, under art. 50, p. 435, of the Code of 1857, which requires that “the husband of any executrix, who may marry after appointment, shall give bond * * * or she shall be removed,” such failure does not revoke or suspend her power as executrix, but is only a cause for removal.</p> <p>3. Power. Execution thereof. How determined.</p> <p>It is always a question of intention whether an instrument is an execution of a power. The power need not be referred to, if the act shows that the donee had in view the subject thereof, and intended to execute it. Where the donee has an interest in the subject of the power, and makes a conveyance of it, without any indication of a purpose to execute the power, the conveyance will be deemed to operate only on his interest, and not to be an execution of the power; but if the words of the conveyance cannot be satisfied without supposing an intention to execute the power, it will be referred to the power.</p> <p>4. Same. Execution thereof.