Barclay v. Dupuy
Barclay v. Dupuy
Opinion of the Court
delivered the opinion of the Court.
In the early part of the year 1838, Joel M. Dupuy departed this life without children and possessed of a large estate, the whole of which, after payment of debts and specific legacies, he devised] by his will made shortly before his death, to his wife, by the following clause; “My will is, that all the balance of my estate, real, personal and mixed, belong to my beloved wife, Lucy H. Dupuy, during her natural life, and that she have the privilege of going on to make and complete the improvements where we now live, according to my known designs and arrangements; and should she decline so doing, and wish to sell the place, she is authorized so to do, and any servants she may think proper, by her giving security for the proceeds thereof being distributed to my heirs after her death, as hereafter named.” By the succeeding clause, the testator devises that after the death of his wife, one half of his estate, deducting $2,000 specifically bequeathed before, shall be equally divided between the heirs or legatees of his father, and that the balance shall descend to the heirs.of his wife. By a previous clause, he had bequeathed $6,000 to be divided among the legatees of his father, with the distinct understanding that they should not inherit any part of his estate until they guarantied every species of property which be received from his father’s estate, as being part of his (testator’s) estate, and on their failure to do so, his will is, that said amount shall descend to his wife and her heirs, she being responsible for all sales made or to be made by him ; and by the remaining clause, be provides that if his wife should die before him, and he should not make another will, what he has given to her, shall descend in the same manner as if he bad died first. And she and another are named as executors.
In July, 1841, Lucy H. Dupuy, after having completed the dwelling house, and several other improvements which were in progress, or immediately contemplated at the date of the will, and at the time of the testator’s •death, made a contract with Barclay for the sale of the farm referred to in the will, consisting of about 263 or 4 •acres, at the price of $80 per acre. And Barclay, after making various payments, and receiving the possession, having refused to accept a deed and execute a note for payment of the residue of the purchase, as provided for in the contract, Mrs. Dupuy filed this bill, accompanied by a copy of a bond executed as required by the will, and prays for a specific execution of the contract, which was •decreed by the Circuit Court.
In revising that decree, the only question is,' whether the vendor has such title or power under the will, as authorized her to sell the farm, after having proceeded with the improvements as above stated. On the one side, it is contended, that the power of sale .given to the wife, is dependent on her declining to go on to make and complete the improvements ; that she could not go on with the improvements and retain the power of sale, and that as she did not decline to go on, but did in fact go on with the improvements, completing such as were commenced, aud making others, she was bound by her election, not to sell, and has lost the power. It is contended on the other side, that the testator intended to give to his wife full ^discretion as to the improvements, and to secure her from responsibility for not proceeding, as well as for proceeding with them ; and that be intended also to give her full power to sell or not to sell, at her discretion, and with no other regard to the condition of the improvements than she herself might entertain, subject only to £he condition of giving the security required for the dis tribution of the proceeds at her death. In support of this conclusion, it is suggested that by filling up the elipsis in the sentence, the intention to give a discretion to sell, independently of the discretion as to the improvements, will be manifested by the most literal interpretation of the language, and that the will should, according to this suggestion be read thus : “And should she decline doing
Other considerations, however, are relied on as showing that the power of sale was intended to be discretionary, and independent of any condition but that of giving the security for the proceeds; and it is not unimportant to show' that the sentence conferring the pow'er is susceptible of a construction entirely consistent with this conclusion. It is obvious from the whole tenor of the will, that the testator’s wife is the chief object of his bounty, as well as of his confidence and affection. It is from affection for her, that after giving her nearly the whole of his estate during her life, he diverts one half of it, and on a certain contingency, the whole after her death, from his heirs to hers. It is from a solicitude for her comfort that he gives her the privilege of going on with the improve; ments, &c. by w'hich she is made exempt from all responsibility for doing so. And even if it might be implied from the grant of this privilege, that she might with equal immunity, abstain from going on with them, or stop short, at her pleasure, it is certainly no strained inference to say, that as at the date of his will it may have seemed probable that some of .the most important im
Conceding then, that the testator contemplated that a sale, if made at all, would be made before the improvements referred to should be all completed, and that in giving the power of sale, he uses language implying that it is to be exercised before the improvements are all completed; still as there is no restriction as to the time of selling or of completing the improvements or as to prosecuting or discontinuing them, but as to all these points, the wife has full discretion; as the sale or the determination to sell, is not made to depend upon any consideration of advantage to those who are to take the estate in remainder, but is to rest not even upon the judgment of the wife as to their interest, but merely upon her own wish to be prompted by her own sense of duty, or convenience, or interest; and as, therefore, the power of sale is manifestly given with an exclusive view to her comfort, and accommodation, and advantage, and any interest which those in remainder might have in the question of sale or no sale, is made dependent on her wish, we cannot conceive any adequate motive for restricting the power with reference merely to the state of the improvements as being completed or not.
It is said, indeed, that as a man of experience, the testator knew that expenditures in extensive improvements, would never be repaid by a sale of the land, and therefore, that it may be presumed that he intended that if the improvements authorized by his w>ill were made, the land should not be sold, and that he intended to require his wife to make her election at once, either to make the improvements and keep the land, or to discontinue the improvements if she chose to sell the land. But for whose benefit was the privilege of going on to make and complete the improvements, &c. allowed? For whose benefit was the power of sale granted? And who was ex-.
Understanding the will as even according to its letter, allowing a sale though the wife may have proceeded, to some extent, in making and completing the improvements, we cannot suppose that the testator either deemed it material or intended to make it a material point in his will, that the sale, if made at all, should be made before and not after the improvements should be completed. And if it be the necessary consequence of supposing that the sentence now under particular discussion, was intended to confer a power of sale only, and not to give express authority to discontinue the improvements, that the declining to go on with the improvements is a condition of the right of sale, so that after the improvements were completed, the power of sale was necessarily atan end,
It was forcibly urged in support of Mrs. Dupuy’s right to sell when she did, that to whatever condition the power of selling the land was subjected, the power of selling the slaves was subject to the same restriction, and that there seems to be no connection between the alledged condition and the sale of a slave. It was also argued, and with more conclusive effect, that from its very nature, the fact which constitutes the alledged condition, refers itself so entirely to the knowledge and will of the depository of the power, that even if it be in form a condition, it is such a one as cannot be enforced, and therefore, leaves the power in fact, unfettered. For to whom but the wife were the designs and arrangements of the testator, for the improvement of his farm known? Who could question her right to make any improvements which she might in fact make, under the allegation that they were according to his designs and arrangements? Or who could say in opposition to her allegation, that she had completed all which she was authorized to make? She says in answer to the cross bill of Barclay, that there were, besides the improvements which she had made and completed, others of a large and expensive character, which she had not commenced. And even if there were no testimony supporting this allegation, it would be extremely difficult if not impossible to disprove it.
But without enlarging farther upon this point, we are pf opinion that upon the face of the will the power of Mrs. Dupuy to sell the farm, was not intended to be subjected to the condition insisted on;- that it was in fact,unrestricted except with respect to giving security for the proceeds ; and that she had a perfect- right to make the
Wherefore, the decree is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.