Tyson v. Tyson

Alvey, J., delivered the opinion of the Court. The mistake alleged in this ease appears with sufficient certainty to entitle the complainants to have it corrected. The proof is full and clear as to the design and purpose of the deed of the 12th of February, 1866, and that it was not intended to divest Mrs. Tyson of her disposing power over the property, conferred by the deed of the 6th of May, 1864. Rut the ground upon which relief was denied by the Court below was, that the object to be accomplished by the deed of the 12th of February, 1866, was not within the purview of the disposing power given by the deed of the 6th of May, 1864; and hence the bill was dismissed.

In the opinion of the Court below, however, we do not concur. The power of disposal, given by the deed of the 6th of May, 1864, is full and complete, if exercised during the life of the present husband, and with his assent. The power is, “ to sell, mortgage, or otherwise dispose of, and to grant the said property and the proceeds to reinvest in such other estate and property as she may think proper.” The property is conveyed to Mrs. Tyson, and to her personal representatives and assigns, to be held as her separate estate, during the life of her present or future husband, and, if she survive, then with power to devise, and after her deat h, in case no sale or other disposition shall be made by the said Julia McH. Tyson, under the aforesaid powers,