50 W. Va. 259 | W. Va. | 1901
Joseph Englerth and Margaret Rowland brought an action of ejectment against Adam ICellar, in the circuit court of Berkeley County, in December, 1899, for the recovery of a lot of land situated in the town of Martinsburg. The defendant filed his plea of not guilty, issue was joined thereon, the matters in controversy were submitted to the court in lieu of a jury, and the court found for the plaintiffs and rendered judgment accordingly. The defendant excepted to the finding and judgment of the court, and upon his petition a writ of error was allowed by this Court. The certificate of evidence sets out the following facts, agreed upon by the parties, upon which the finding and judgment of the court are based.
Mary Hoke and William Hoke, by a deed dated April 6, 1848, conveyed to Michael Englerth parts of two contiguous lots in the town of Martinsburg, being parts of lots two hundred and twenty and two hundred and twenty-four. Michael Englerth died' some time in the 'year 1873, leaving a last will and testament, dated April 20, 1872, which was admitted to probate on the 6th day of April, 1873. The third and fourth clauses of said will are the provisions thereof, relating to the matters in controversy in said suit. They are as follows:
3 — “It is my will that my wife, Margaret Englerth, is to have and to hold all my real and personal property that may remain after paying all my debts as aforesaid, to be enjoyed by her during her natural life, but if at any time she may wish she shall be at liberty of selling a portion of the real estate that she may think to her interest and in that case her conveyance shall be valid.
4 — “It is my will that all property that may be in the possession of my wife at her death belonging to said estate shall be equally divided between my two children Joseph Englerth and Margaret Tnglerth’ or their nearest heirs at law." . '
By a deed dated July 7, 1873, Margaret Englerth, the widow, conveyed part of said real estate.to Louisa Woodruff for the sum of eight hundred and seventy-five dollars. Afterwards she executed another deed to Louisa Woodruff for the same real estate,
The testator appointed his wife, Margaret Englerth, executrix of his will and expressed the desire that no security be required of her in the execution of the trust. By the second clause of the will the executrix was required to pay all of the testator’s debts and funeral expenses and have his grave marked with a suitable tombstone.
The three cases involving the construction of provisions in wills, similar to that contained in the third clause of the will under consideration here, decided by this Court, are Milhollen v. Rice, 13 W. Va. 510; Cresap v. Cresap, 34 W. Va. 310; and Wilmoth v. Wilmoth, 34 W. Va. 324, but there are numerous sim ilar eases in the Yirginia reports. In none of these cases, however, did the exact question presented here arise. In the first, the provision construed was that which required so much of the personal estate of the testator, as was necessary to pay his debts and funeral expenses, to be sold and the balance of the personal property to remain on the plantation for the benefit of his wife, “To use and dispose of at her discretion during her natural life, and also to have the right of disposal at her death;” and that all the lands belonging to the testator should belong to his wife during her natural life, “To use in any way she may think proper during her life,” at her death, the land to be sold and the money arising from said sale to be divided, one-half to go to
In. the case of Cresap v. Cresap, the language of the provision of the will construed is, “I give and bequeath to my beloved wife, A. C. C., in trust and for her support and maintenance during her life, all my estate both rea] and personal with full power and privilege to sell and convey any, all or so much o (1 my real estate in such manner as she may see fit, in as full and complete manner as I myself can do, to sell and dispose of my personal estate, or so much as she may see fit for her own support, according to her condition in life, and for the benefit of my estate, so far as she may see proper.” The interpretation put upon that clause was controlled by, or founded upon, the phrases, “In trust and for her support and maintenance during her life,” qualifying the gift to her of the whole estate of the testator both real and personal, and the phrases, “According to her condition in life, and for the benefit of - my estate so far as she may see proper,” qualifying the power of sale conferred by the clause and explaining the purpose of, and reason for, such sale. No such qualification and language is found in the will which it is necessary to interpret in deciding this case. In Wilmoth v. Wilmoth, the clause, “I give and bequeath to my beloved wife, Hester A. "VVilmoth, all my personal property (viz., horses, cattle, money, bonds, farming utensils, household and kitchen furniture, and everything else classed as personal property) to be hers absolutely, to be used by her in any way or manner she may wish for her' own comfort and benefit of our two children Troy Wilmoth and Grace Wilmoth,” was held to give the personal property to the wife absolutely and not to create a precatory trust in respect thereto in favor of the children, although there was a limitation over, in case of the death of the wife and children “without any heirs.” The limitation over was held to be void.
It would perhaps be impossible to find any case in which the
As already stated the first part of clause three of the will vests in Margaret Englerth a life'estate in the land of the testator. That devise, unless changed and enlarged by other portions of the will, is absolutely certain and definite in its terms. It clearly does not belong to that class of devises, designated in the books as indefinite, such as where a testator devises land to his wife to dispose and employ'the same on her and her son at her will and pleasure as in Sutton v. Robertson, Moore 57, N. 162, or, where the devise was to the testatrix’s daughter for her own use, to give away at her death to whom she pleases, as in Timewell v. Perkins, 2 Atk. 103. The real question, therefore, is, does the latter part of clause three enlarge that life estate to a fee simple, or, being connected with what precedes it, does it render the devise indefinite and leave it to be gathered from the whole will that, in order to eifectuate the intent of the testator appearing from the terms of the will, the devisee takes a fee simple. In Milhollen v. Rice, 13 W. Va. 523, Judge Green says in Good-title v. Otway, 2 Wils. Chy. as reported, the court is represented as deciding that a devise to one for life, with power to the devisee to dispose thereof at her will and pleasure, gave to the devisee a fee simple. But he says that case is badly reported and the devisee in that case was the heir to all, and the land descended to her as such, and it was unnecessary for the court to have gone further in deciding that the estate belonged to her in fee simple. He, therefore, regards the expression of opinion that the life ■estate was enlarged to a fee simple by the annexed power of disposition as a mere obiter dictum. After discussing that and some other cases, he says: “There would seem now to be no doubt, that if when a devise or bequest expressly gives a life estate, a superadded power of disposition will not enlarge the life •estate into a fee simple, or make the property bequeathed absolute,” and oar this proposition he cites numerous cases. It must be remembered, however, that he was discussing that class of ea,ses in which the will vests a life estate in the devisee with the power of disposing of the land after the expiration of the life estate. That was the ease he was discussing and the nature of the provision he was construing. It was not a case belonging to that other class in which the devisee of the life estate is vested
The provision under consideration here does not fall within either of these classes. It is not an indefinite gift, as defined by the foregoing authorities, nor of a life estate with the power of disposition after the expiration of the life estate. It is certain in this, that it vests a life estate in the donee. It vests in her, also, the power to sell a portion of the land and make a valid conveyance thereof, and this she may do, not by way of appointment to take effect after the expiration of her life estate, but at any time by sale and conveyance.
The same provisions class the case with a long line of others in which it has been held that where lands are given to one for life, with remainder over and power is also given to the life tenant to sell or dispose of the land, the life tenant takes a power to sell the fee. 18 Am. & Eng. Ency. Law 904; Downie v. Downie, 9 Bis. ( II. S.)23; McGavock v. Pugsley, 1 Tenn. 410; Bishop v. Remple, 11 Ohio St. 277; Shaw v. Hussy, 41 Me. 495; Lillard v. Robinson, 3 Litt. (Ky.) 415; Benesch v. Clark el als., 49 Md. 497; Forsythe v. Forsythe, Pa. St. 129; Crozier v. Hoyt, 97 Ill. 23; Markillie v. Ragland, 77 Ill. 98; Dodge v. Moore, 100 Mass. 335. In some of these cases it clearly appears that the courts do not regard the power of sale as having enlarged the life estate, expressly conferred, into an estate in fee simple. Thus in Benesch v. Clark, the court holds, “First, that where an estate is given to a person generally or indefinitely with power of disposition, such gift carries the entire estate; and the devisee or legatee takes, not a simple power, but the property absolutely.Second, that when the property is given to a person expressly for life, and there be annexed to such gift a power of disposition of the reversion, there the rule is different, and the first taker takes but an estate for life, with the power annexed.” In that case the life tenant conveyed the property in question by deed, as did the life tenant in this ease, and the court held that her power of disposition was well executed. In Lewis v. Palmer, 46 Conn. 454, the devise was as follows: “I give to my sister S. the use of all the rest of my real estate during her natural life and for her to dispose of as she may tnihk proper.” This devisee had conveyed the property in her life time, and the court, without deciding whether she took a life estate or an estate in fee, held that by her deed she conveyed the land in fee. Carpenter, J., in the opinion said: “We find no ease where a life estate created by express words is enlarged to a fee by the power of sale. There are cases where there is an apparent life estate with power of disposal, but without any disposition of the remainder, in which it is held that the devisee takes a fee. There are other cases where there is a devise of an estate generally, with an ex
The power of sale given in this will, as to a portion of the real estate of tho testator, is unqualified and unrestricted in any way. The testator intended that she should, in ease she desired to do so, sell a portion of the real estate and make a valid conveyance thereof, without any reference whatever to any circumstance or contingency over which she did not possess control. Her power was not made dependent upon her comfort or necessities. To sell at any time that she might wish to do so, was the broad power conferred upon her. That distinguishes this case from a vast number of others in which the execution of the power is, by the terms of the will, made to depend upon some future contingency, such as that in Stevenson v. Winship, 1 Pick. (Mass.) 318.
Having such absolute power of sale as to a portion of the real estate it remains to inquire whether she might make several conveyances of different portions of it and thus dispose of all of it. The will expressly says she may sell “A portion of the real estate that she might think to her interest and in that case her conveyance shall be valid.” Who is to determine how much she may sell? She alone. Clearly she has the right to sell practically all of it, and not thereby violate the letter or spirit of the third clause of the will. It is wholly immaterial that she sell and convey in separate portions and to different persons, and at different times. After making her two first conveyances she had only disposed of a portion of the land. To say that because the will speaks of “a portion,” not portions, and “her conveyance,” not conveyances, only one sale and conveyance could be made is very technical and clearly not in harmony with the principles governing the construction of wills. She might have found it impossible, at the time she made her first conveyance, to dispose of such an amount of the land at a fair price, as she desired to sell, or as she might have thought it to he “to her interest to sell;” but, having opportunity to dispose of a smaller portion at that time at a fair price, no good reason is perceived why she might not make that sale and another sale of an additional
Whether the widow, having the power to convert all the real estate into personal property, by sale and conveyance thereof, had authority, under the will, to consume 'the principal of that estate, or was confined to the use of the rents, issues and profits thereof, is a question not involved in this controversy. Whether the life estate, expressly conferred, was enlarged, by the power of sale, to an estate in fee, it is unnecessary to decide, as has been shown. The intention of the testator as to whether Mrs. Eng-lerth might consume the proceeds of the land, or should be confined to the use of the income to be derived from the fund, created by the sale, in no way affects the validity of her conveyances. Whether her estate under the will was in fee or only for life, that instrument empowered her to determine, in her own interest, whether she would sell the land. Assuming that she was only a tenant for life, it was in her discretion to say whether the income from the money would better subserve her interests than the rents, issues and profits of the land, and to act accordingly. If she wrongfully consumed the corpus of the estate, the hardship resulting therefrom cannot be permitted to govern the construction of the will.
The judgment of the circuit court is, therefore, erroneous, and must be reversed, and, as the case stands here as upon a demurrer to the evidence, judgment must be entered for the defendant.
Reversed.