140 Iowa 282 | Iowa | 1908
— Some time prior to September, 1899, Tennetta M. Hamilton, late of Story County, died testate. By tbe instrument of will, provision was made by the testatrix, first, for the payment of her funeral expenses and just debts; “second, all the rest, residue and remainder of my estate, real, personal and mixed, of which I may die seised or possessed, or to which I may bo entitled, I will, devise and bequeath to my beloved husband, Charles Hamilton, to have and to hold unto my said husband during his life, with full power to sell, transfer and dispose of same or as much thereof as may, from time to time, be needed for his support or maintenance during his said lifetime; third, I further direct that after the decease of my said husband, Charles Hamilton, all the then remaining property of my estate, both real,, personal and mixed, shall revert fo and is hereby given, devised and bequeathed to my children, equally, share and share alike.” The death of said Tennetta M. Hamilton is alleged, as also due probate of the will. The petition is in two counts. In the first, plaintiff alleges that as surviving husband in virtue of the will he is the absolute and unqualified owner of all the property of which the testatrix died seised, and he prays that the instrument may be given construction conformably to the claim as thus made by him. In the second count the necessity for a sale of part of the real property of which the testatrix died seised is alleged, and an order granting authority to sell and convey is prayed.
We think, as did the court below, that the provisions of the will do not afford warrant for the conclusion thus broadly contended for by plaintiff. The power of alienation is a limited one. He (plaintiff) may sell, etc., as “needed for his support or maintenance.” As life tenant it is the duty of plaintiff to preserve the property by making ordinary repairs. 16 Cyc. 629. And there is no
On the conclusions expressed foregoing, the decree appealed from must be, and it is affirmed.
Supplemental Opinion.
The petition for rehearing is therefore overruled.