284 S.W. 121 | Mo. | 1926
Lead Opinion
This is an action in ejectment for a lot in the city of Springfield, Missouri, on which there is a two-story building. The case was tried by the court, judgment rendered for defendants, and plaintiffs appealed.
Appellants claim the right to possession of the property in controversy as remaindermen under the will of Edwin T. Robberson, deceased, who was the common source of title. Defendants claim possession of said property by virtue of a lease executed in her lifetime by Elizabeth J. Robberson, who was the widow of said Edwin T. Robberson. The latter died the 10th day of November, 1893, in Greene County, Missouri, leaving a will, dated January 18, 1890, which was duly probated in said county on November 23, 1893. Elzabeth J. Robberson, the widow, died at the age of eighty-six years on August 31, 1923. Four of the plaintiffs are children of Dr. Edwin T. Robberson. The other plaintiffs are the heirs and devisees of the three deceased children.
On May 8, 1919, Elizabeth J. Robberson, the widow, executed a lease of said property to the Royal Company, a Delaware corporation, for a period of twelve years and seven months, to commence the first day of June, 1919, and ending on December 31, 1931. On May 21, 1919, Mrs. Robberson, consented to an amendment to said lease, providing that the lessee therein might sub-let said premises or any part thereof. On October 16, 1922, for a recited consideration of one dollar, Mrs. Robberson consented that the Royal Company might assign said lease to Thomas H. Hooper, Jr. The Royal Company, through its president and secretary, assigned said lease to Thomas H. Hooper, Jr. On October 30, 1922, said Thomas H. Hooper, Jr., in consideration of said assignment, assumed, and agreed in writing to make all the payments and perform all the covenants and conditions *223 called for in said lease. The latter provided for the payment of $250 per month as rent to be paid in advance during the period aforesaid. It further provided that the lessee should keep the building in good repair and expend $3,000 in improving the building on or before January 1, 1921, at the cost of lessee. It appears from the evidence that the lessee expended about $5,000 in improvements on the property.
The will is dated January 18, 1890, and the second paragraph of same reads as follows:
"II. All the rest and residue of my property and estate of whatsoever kind, real, personal and mixed, I give, devise and bequeath to my dearly beloved wife, Elizabeth J. Robberson, to be used and enjoyed by her for and during her natural life. I have faith and confidence in my said wife that she will care for, maintain, support and educate our minor children if any there be at my death, as I myself would do if life were preserved to me. And I do therefore give to my said wife power and control of all of my said property so long as she may live, to collect all debts which may be due to me, collect all my personal assets of whatsoever kind, use them as she may see fit in support and maintenance of herself and our children, and reinvest any money which may come to her and which may not be needed for the support and maintenance of herself and family, in any manner she may think proper, and I empower her if she may deem it best to sell any real estate of which I may die seized and to convey to the purchaser thereof the fee title absolute and the proceeds arising from such sale, to re-invest as she may think best in other real estate or personal property. It being my intention by this will to empower my said wife to use, dispose of and enjoy the property I may leave for herself and her family while she lives just as I should have power to use, dispose of and enjoy it during my life for the use of myself and family did I survive her."
The third paragraph of said will provides that: *224
"After the death of my said wife I desire all the property remaining derived from me shall be divided equally among my children," etc.
The seventh paragraph of the will is as follows:
"I do hereby appoint my wife Elizabeth J. Robberson sole executrix of this my last will and testament and it is my express will and request that she be permitted to execute this trust without giving the statutory bond thereto required."
The evidence tends to show that the fair rental value of the property at the date of trial in September, 1924, was $515 per month. It does not appear from the evidence that $250 per month, with the added obligation to keep the building in good repair and expend $3,000 in improving the building before January 1, 1921, was not a fair rental value in October, 1922, when the lease was assigned to Hooper, nor does it appear from the evidence that on the date of the lease in May, 1919, the rental value of said premises was in excess of the $250 per month.
Over the objection of plaintiffs, Mr. T.E. Whitlock, who had been in the real estate business at Springfield, Missouri, for about thirty years, and who represented the Royal Company in obtaining said lease, testified that in his opinion a lease of said property could not have been made to advantage for a short term, such as two or three years, but could have been leased more advantageously for a longer term.
The will in controversy was executed January 18, 1890. The testator died November 10, 1893. The widow, Elizabeth J. Robberson, died at the age of eighty-six years, on August 31, 1923. The will was probated in Greene County, Missouri, November 23, 1893. The lease to the Royal Company was dated May 8, 1919. The property in controversy was sub-let by the Royal Company to Thomas H. Hooper, Jr., October 30, 1922.
Plaintiffs contend that the will in controversy gave the widow a life estate, with power to sell and convey any real estate she might think best, but did not give *225 her the power to lease the property for a period extending beyond the time of her life. Defendants contend that the will gave the widow not only the power to sell, but the power to lease said property, as was done by the widow, extending the same beyond the period of her lifetime.
I. It is contended by appellants that the provisions of the will in controversy are insufficient under the law to sustain the lease read in evidence, which extended beyond the lifetime of the widow. In considering this subject, it would serveConstruction no useful purpose to call into requisition theof Will. numerous decisions of our various courts in dealing with common-law principles relating to powers and3 the execution of same, for the obvious reason that the law-making power of our State has marked out a line of construction which3 should be followed in passing upon the issue which now confronts us in this case.
Section 555, Revised Statutes 1919, reads as follows: "All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them."
In addition to above statute, Judge LAMM in Eckle v. Ryland, 256 Mo. l.c. 453, has well said: "The tendency of modern decisions on questions of contingent and vested remainders, has been more and more to break away from the technical refinements of the old common-law learning."
We think it manifest from the provisions of the will heretofore quoted, that Mrs. Robberson, the widow, became vested with a life estate, in the real estate in controversy, with full power of disposition during her life; and that upon the death of testator, his children became vested with an equitable estate in remainder, subject to the life estate and power of disposition given to the widow by the will. [Mitchell v. Morrisville College,
It is clear from reading the foregoing authorities, that if the lease in controversy should be declared void on account of it extending beyond the lifetime of the widow, the plaintiffs, as remaindermen, would be entitled to recover possession of the real estate in controversy. On the other hand, if the lease should be upheld, the plaintiffs, as remaindermen, would not be entitled to the possession of said premises until the termination of said lease.
II. Before coming to the consideration of the real issue in this case, it is important that we should, by the process of elimination, dispose of some questions discussed in the authorities, but which are not really present in this case.
(a) Under a life estate like the one in controversy, the donee of the power, unless authorized by the will in terms to do so, cannot give away the property of the estate, or dispose of the same by will. To hold otherwise would, in legalPower to effect, destroy the estate in remainder, which theGive Away. testator intended for his children. [Cook v. Higgins, 290 Mo. l.c. 416-17-18; Trigg v. Trigg, 192 S.W. l.c. 1014; Tallent v. Fitzpatrick,
(b) It is contended by appellants that the will in controversy did not authorize the widow to mortgage the property in controversy. Suffice it to say, that nothing of thePower to kind was attempted by the widow.Mortgage. *227
We are referred under the above contention to the case of Price v. Courtney,
Here then was a trustee, with a mere "naked power," making use of the trust property as mentioned. In the above case, the court was dealing with common-law principles which have no application to the facts of the present controversy. [Eckle v. Ryland, 256 Mo. l, c. 453.] On page 394 Judge RAY quotes with approval the ruling of the Supreme Court of Massachusetts in Hoyt v. Jacques,
"The two transactions of a sale and a mortage are essentially different. A power to sell implies that the attorney is to receive, for the benefit of the principal, a fair and adequate price for the land; a power to mortgage involves a right in the attorney to convey the land for a less sum, so that the whole estate may be taken on a foreclosure for only a part of its value. So, under a will, a trust with a power to sell, prima-facie, imports a power to sell `out and out,' and will not authorize a mortgage, unless there is something in the *228 will to show that a mortgage was within the intention of the testator."
It may be truly said that property mortgaged by the widow, under a foreclosure proceeding, might be lost to the remaindermen, yet that principle of law has no application to the facts in this case, because the property was not sold, willed, given away, or mortgaged. On the contrary, it is owned by the remaindermen, with right of possession in them on the termination of the lease. In addition thereto, the rental of $3,000 per year was used by the widow during her lifetime for the support of herself and children, and these plaintiffs are the equitable owners of the rent due on said premises after the widow's death until the lease expires.
Aside from the foregoing the ruling in Price v. Courtney,
"Second. For the purpose of supporting and maintaining my beloved wife and children, I give, devise and bequeath all my property of every kind and nature unto my beloved wife, Julia M. Trigg, with power to sell and dispose of as she may see fit and proper for the support of herself and our children, and whatever may be left of my estate at her death, if any, I desire that it shall go to my children, share and share alike. I hereby appoint my beloved wife, Julia M. Trigg, executrix of this my last will, and testament, without a bond to be given by her."
We properly held, that the above quoted paragraph gave to Julia M. Trigg a life estate in all of testator's property, at the time of his death, with power to sell and dispose of same in accordance with the terms and provisions of the will; and whatever was left at her death, if anything, was to be equally divided between her three children aforesaid. An array of authorities *229 was cited in support of above pronouncement of the law. The facts are fully set out in the opinion, and indicate that after testator's death the testatrix, or widow, lived with her son, the plaintiff, who was the head of the family. It became necessary from time to time for plaintiff to advance money to his mother for the benefit of the widow and children, until the amount advanced by plaintiff for their support and maintenance equaled to or exceeded the value of the land, which the widow conveyed to plaintiff in payment of the above advancements. The plaintiff brought suit to quiet the title to said land and made certain remaindermen defendants. The lower court sustained plaintiff's theory, and rendered judgment in his behalf for the land. The case was well tried before an able judge, and elaborate briefs were filed in the Supreme Court, supplemented by oral arguments on each side. The judgment below was affirmed after a full consideration of the case. In disposing of the Trigg case on pages 1014-15 of 192 S.W. we said:
"It has long been the law in this State that, in construing wills, the courts should have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them. [Sec. 583, R.S. 1909.] While performing the solemn duty of executing his will, the testator evidently realized that, if he should pass away during the minority of these helpless children, the duty would devolve upon some one to support and maintain them during this period. His mind very properly reverted to his wife as being the most suitable person to fill this important position. The language used in said instrument indicates that he had the utmost confidence in her and made his will accordingly. He gave to her all of his property, without requiring a bond, `with power to sell and dispose of as she may see fit and proper for the support of herself and children,' etc. He did not require her to sell the property for cash, but left her untrammeled, to dispose of it, in some other way, if she saw fit to do so, in carrying out the provisions of the will. If the income from *230 his estate should prove to be insufficient to enable her to support and maintain herself and children, it is manifest that he must have expected her, in some manner, to realize from the property that which was necessary to cover the deficiency of income, and, in so doing, to use her best judgment.
"But it is insisted by appellants that when Mrs. Trigg, after her husband's death, came face to face with this proposition, her only alternative was to sell the property for cash, even at a sacrifice, if necessary, in order to raise adequate means for the support and maintenance of herself and children. We are not favorably impressed with this contention, as applied to the facts presented in the record before us. It would have been unbusiness like for testator, in providing for the support and maintenance of his wife and three small children, to have arbitrarily required that his property should be sold for cash, although there might be no demand for it, and the property sacrificed thereby.
"Suffice it to say, testator took no such narrow view of the situation as that contended for by appellant. He neither required, nor expected her, to sell for cash, if in her judgment she saw fit to pursue a different course, in complying with the provisions of the will. She was not authorized to give the property away, nor to dispose of it in any other manner than that provided for in the will. The property was not given away, but disposed of in accordance with the plain provisions of the will. We are of the opinion that, under the broad power conferred by said instrument, she would have been authorized to borrow the necessary funds for the purposes aforesaid, and to have secured the same by deed of trust on the property in controversy. In other words, the language aforesaid conferred upon the widow the right to sell for cash, on time, or to mortgage the property, in order to raise the necessary funds for the support and maintenance of herself and children. The conclusion, thus reached, is supported by the great weight of modern authority. [2 Perry on Trusts (6 Ed.) sec. 768, p. *231
1272; 9 Am. Eng. Ency. Law (2 Ed.) p. 540; Ironside v. Ironside, 150 Iowa, l.c. 632, 130 N.W. 414; Waterman v. Baldwin, 68 Iowa, l.c. 260, 26 N.W. 435; Connely v. Putnam,
The broad provisions of the will in controversy, as construed under Section 555, Revised Statutes 1919, would have warranted the widow in selling the real estate in controversy and using the proceeds for the support and comfort of herself and children, which necessarily would have destroyed the estate in remainder of the premises in dispute. But the widow did not sell, she did not mortgage said property, nor did she give it away or will it to another. On the contrary, she preserved said property for the remaindermen. She was in possession of the premises as life tenant, and had the undoubted right to lease the same during her life. She was not only a life tenant, but in possession of said property as trustee for the remaindermen, subject to the life estate and power of disposition given the widow by the will. She realized that it was her duty to rent said property upon the best terms obtainable. There being no evidence tending to show that she failed to perform her duty as a careful trustee in renting the property, it will be conclusively presumed, in this collateral proceeding, that she was guilty of no impropriety in making the lease, if she was empowered by the will to do so. [Henson v. Ry. Co., 256 S.W. l.c. 775; Pate v. Dumbauld, *232
250 S.W. l.c. 52 and cases cited; State v. Roderman, 297 Mo. l.c. 152,
We then have this situation, that the widow — in whom testator reposed special confidence, having appointed her as testatrix without bond, and she having been administering this estate for more than a quarter of a century without objection or criticism — was confronted with the fact that the property in controversy needed repairs. She thereupon, in the discharge of her duty, obtained the best lease possible for said property, and required the tenant to make $3,000 of repairs and pay for same. She preserved said property for these plaintiffs, for which it is claimed they could have realized over $500 per month as rental at the date of trial. In addition to the foregoing, she used the rental under said lease for the benefit of the family, and at her death the defendant was required by the lease to pay these plaintiffs $3,000 per annum during the life of the lease, which they refused to accept.
In other words, these plaintiffs occupy the unenviable position of repudiating a businesslike deal made by the mother for the benefit of the estate, as well the remaindermen, for the obvious reason that the rental value of the property increased after the execution of the lease. It is manifest that if the rental value of the property had fallen below $250 per month, we would have no preceeding of this character in court.
III. In view of what has been previously said, we deduce the conclusion: That the widow was authorized by the provisions of her husband's will, heretofore set out, to execute the lease in controversy; that she acted intelligently and with fidelity in the discharge of her trust, and that her conduct inPower to preserving this property for the benefit of theLease. remaindermen, is worthy of the highest commendation, and should be upheld. *233
We do not think the testator by the terms of the will aforesaid intended in legal effect to say to his widow: "You may sell the real estate in controversy, and use the proceeds for the comfort and support of yourself and children, but you cannot lease the same property beyond your lifetime for the highest rent obtainable, preserve the corpus of the property for the remaindermen and secure to them $3,000 per annum rent from your death to the termination of the lease."
A construction of the will as above indicated would ignore the plain provision of our statute relating to the construction of wills, do violence to the memory of testator in respect to his wife, and bestow upon these plaintiffs an advantage entirely foreign to the intention of testator as expressed in said will.
IV. We are cited to Taussig v. Reel,
In the above case, as the widow could only lease during her life, the remaindermen executed a contract giving her power to make a longer lease. Under the power thus conferred, she undertook to make successive leases, and *234 this court construed the last lease. Judge BURGESS entered into an elaborate discussion of the common law, relating to the widow's power under the conveyance which the remaindermen made to her. The law as announced in above case is without application to the issues here. It was held that the remaindermen did not confer on the widow the power to make the second lease. The widow in the case before us, did not make the lease in controversy under any power conferred on her by the remaindermen, but she made the lease partly on her own account as life tenant, and as we have heretofore held, derived from the testator, through his will, the remaining power to make the lease.
V. After discussing the foregoing phases of the case, let us turn to the will itself and proceed by analysis to ascertain what powers the testator conferred on his wife by the termsThe Will of the instrument.Analyzed.
1. He made his wife executrix of his estate without her being required to give a statutory bond. 2. He placed her, at his death, in absolute control of his entire estate, and expected her to look after the education, comfort and support of the children as he would have done had he lived. Section Two of the will, divided into sections numbered one and following, reads as follows:
1. "All the rest and residue of my property" (after paying his debt and funeral expenses) "and estate of whatsoever kind, real, personal and mixed, I give, devise and bequeath to my dearly beloved wife, Elizabeth J. Robberson, to be used and enjoyed by her for and during her natural life.
2. "I have faith and confidence in my said wife that she will care for, maintain, support and educate our minor children if any there, be at my death, as I myself would do if life were preserved to me.
3. "And I do therefore give to my said wife power and control of all my said property so long as she may live, to collect all debts which may be due to me, collect *235 all my personal assets of whatsoever kind, use them as she may see fit in support and maintenance of herself and our children.
4. "And reinvest any money which may come to her and which may not be needed for the support and maintenance of herself and family, in any manner she may think proper.
5. "And I empower her if she may deem it best to sell any real estate of which I may die seized and to convey to the purchaser thereof the fee title absolute and the proceeds arising from such sale, to re-invest as she may think best in other real estate or personal property.
6. "It being my intention by this will to empower my said wife to use, dispose of and enjoy the property I may leave for herself and her family while she lives just as I should have power to use, dispose of and enjoy it during my life for the use of myself and family did I survive her."
We think it clear, from the careful manner in which the testator has expressed himself in Paragraph Two, supra, that he did not contemplate his wife should dispose of any of his property by gift or will, as he expected it to be used during the lifetime of the wife for the convenience, comfort and support of his wife and children, and that on the death of his wife the remainder of his estate, if any were left, should go to his children, share and share alike, regard being had to advancements made, as provided in paragraph three of the will.
In the concluding portion of Paragraph Two, supra, testator empowered his wife to dispose of the property in controversy for herself and family, as he might have disposed of it for the benefit of the family had he survived her. Turning to the record, we find that the lease in question was made for the benefit of the widow and children. She did not attempt to give the property away, nor dispose of it by will. Can there be any question, as to the right of the testator to have made said lease for twelve years and seven months at $3,000 per year had he been alive? She had the legal right by *236 virtue of the above provision to make the lease if he could have done so, provided it was made for herself and children.
This court has expressed itself in no uncertain language, in defining the words "use" and "dispose of" in the above will as will be seen by reference to St. Louis Union Trust Co. v. MacGovern Co., 297 Mo. l.c. 535, where SMALL, J., said: "It is a general rule that the words `dispose of' have a broader meaning than the word `sell,' and include the power to exchange and sell unless restricted by the context or circumstances, which cannot be soundly asserted in the case before us. [3 Words and Phrases, pp. 2117 and 2118; 2 Words and Phrases (2d Series) pp. 80 and 81; Ironside v. Ironside,
The same principle of law is upheld in Trigg v. Trigg, 192 S.W. l.c. 1014-15; Phelps v. Harris,
A careful reading of the will clearly indicates to our minds, that testator intended to grant his widow unlimited power in dealing with said property and to allow her to do whatever he could have done, if living, provided, that the disposition of same was for the benefit of herself and children. In other words, if any of his property was left at the widow's death, he wanted it to go to his children, and not by gift or will to another.
VI. We see no reason for pursuing this inquiry further. Whether considered upon principle, or authority, the trial court reached a correct conclusion in disposing of this case. The judgment below is accordingly affirmed. Higbee, C., dissents. *237
Dissenting Opinion
I dissent from the conclusion reached by Judge RAILEY in his opinion. It is unsupported by any authority, and does violence to the manifest intention of the testator.
It is conceded that a life tenant cannot make a lease extending beyond the life of the lessor, and a lease for a term of years so made expires with the death of the lessor, but the construction adopted in the opinion has precisely that unauthorized effect. Paragraph II of the will is as follows:
"A. II. All the rest and residue of my property and estate of whatsoever kind, real, personal and mixed, I give, devise and bequeath to my dearly beloved wife, Elizabeth J. Robberson, to be used and enjoyed by her for and during her natural life.
B. "I have faith and confidence in my said wife that she will care for, maintain, support and educate our minor children if any there be at my death, as I myself would do if life were preserved to me. And I do therefore give to my said wife powerand control of all my said property so long as she may live, to collect all debts which may be due me, collect all my personalassets of whatsoever kind, use them as she may see fit in support and maintenance of herself and our children, and reinvest any money which may come to her and which may not be needed for the support and maintenance of herself and family, in any manner she may think proper;
C. "and I empower her if she may deem it best to sell any realestate of which I may die seized and to convey to the purchaser thereof the fee title absolute and the proceeds arising from such sale, to re-invest as *238 she may think best in other real estate or personal property.
D. "It being my intention by this will to empower my said wife to use, dispose of and enjoy the property I may leave for herself and her family while she lives just as I should have power to use, dispose of and enjoy it during my life for the use of myself and family did I survive her."
I have separated this clause by the designations A, B, C, and D, to indicate a logical classification evidently in the mind of the testator.
The next paragraph gives the remainder to the testator's children, plaintiffs here.
Paragraph VI of the will is as follows:
"VI. The devise and bequest of all my property made in this will to my wife Elizabeth J. Robberson to be used and enjoyed by her for and during her natural life is intended by me to be in lieu of dower allowed her by law in my estate."
All rules of construction, and common sense interpretation of language, show that the testator intended to give his widow a life estate only in his property. No other meaning reasonably can be extracted from it. Unless the language can be construed to authorize an absolute disposition of the real estate and a consumption of the corpus, the lease ended with Mrs. Robberson's life.
It must be borne in mind that the power to use and enjoy, when applied to real estate, never includes the consumption of the real estate. To use it does not mean to use it up. To use and enjoy personal property may mean its consumption. This distinction is overlooked in the opinion, and the respondents' argument mainly rests upon the application to real estate language of the will intended to apply to personal property and to give it an interpretation applicable only to personal property. Now examine each sentence and phrase of Paragraph II of the will and you will find no such authority as that claimed. *239
"II. All the rest and residue of my property and estate of whatsoever kind, real, personal and mixed, I give, devise and bequeath to my dearly beloved wife, Elizabeth J. Robberson, to be used and enjoyed by her for and during her natural life."
What is there in that to authorize the disposition of real estate beyond the life term? That is a general expression of the testator's desires, and he then becomes specific.
"I have faith and confidence in my said wife that she will care for, maintain, support and educate our minor children, if any there be at my death, as I myself would do if life were preserved to me. And I do therefore give to my said wife powerand control of all my said property so long as she may live, to collect all debts which may be due to me, collect all mypersonal assets of whatsoever kind, use them as she may seefit in support and maintenance of herself and our children, and reinvest any money which may come to her and which may not be needed for the support and maintenance of herself and family, in any manner she may think proper."
Words could not be used more plainly to express an intention to give the wife control of all the property, including the real estate, and to give her the power to use up, consume, the personal property, if she saw fit. That was the result of the testator's "faith and confidence," in her, and that expresses the limit of her discretion. Yet, that part of the will is construed with other parts as authorizing a disposition of the real estate beyond the life of the life tenant, as authority to consume the real estate.
Then follows the specific authority to deal with the real estate:
"And I empower her if she may deem it best to sell any real estate of which I may die seized, and to convey to the purchaser thereof the fee title absolute and the proceeds arising from such sale, to re-invest as she may think best in other real estate or personal property." *240
That defines with exactness what she may do with the real estate. She may sell and convey it but she must reinvest the proceeds. The personal property, he has just said, she may use as may be needed in the support of herself and her family. These specific directions in those parts quoted, "B" and "C," all expressed in one sentence, joined together as one thought, explicitly and completely show the testator's intention regarding the personal property and the real estate. She may use the former in support of the family, and she may convey the latter but she must reinvest the proceeds. How is it possible to get away from this distinction which the testator makes between the personal property and the real estate? The opinion goes counter to that manifest intention by attributing to the real estate the authority conferred in handling the personal property.
Then follows the final sentence of Paragraph II:
"It being my intention by this will to empower my said wifeto use, dispose of and enjoy the property I may leave for herself and her family while she lives just as I should have power to use, dispose of and enjoy it during my life for the use of myself and family did I survive her."
This, plainly, is a summary of what has gone before. "It being my intention" (as heretofore expressed). She may "use" the property, "enjoy" it as theretofore expressed, and may "dispose of" it (as theretofore stated). Emphasis is placed upon the words "dispose of," as used there, as if that meant an absolute disposition of the real estate and consumption by use of thecorpus.
It means nothing of the kind. She could "dispose" of it as above stated, not otherwise. In order to be certain that no mistake should be made the words are added "while she lives." Respondents interpret that expression as meaning to limit the time within which she might use, or dispose of, her property to her lifetime, as if it were possible for her to use it or execute any contract *241 concerning it after she was dead. Dr. Robberson, we will presume, was not supertitious and had no fears that his widow would return from the dead to "dispose of" the property he left in her charge. As a man of common sense with common knowledge of the meaning of words, he could not have thought it necessary to restrict her dealings with the property to the only time when she could deal with it — during her life. "While she lives," is ignored by the opinion, but there it stands definitely expressing the desire of the testator. She could dispose of it for a period conterminous with her life, and no longer. She could lease it "while she lives" for a term within her lifetime. She could make any disposition of it while she lived, just as she might use it while she lived.
Respondents argue that the expression, "as I should have power to use, dispose of [etc.] did I survive her," as giving power to alienate beyond her life as he might have done had he lived. But that statement is bound up in the same sentence with the restriction "while she lives." If that expression be given any meaning she could do all the things he might do, affecting the property for her lifetime, but not thereafter.
Respondents contend that the will authorized Mrs. Robberson to dispose of the real estate and consume the corpus in support of the family. The opinion adopts that view, for it says:
"A careful reading of the will clearly indicates to our minds that testator intended to grant his widow unlimited power in dealing with said property and to allow her to do whatever he could have done, if living, provided that the disposition of same was for the benefit of herself and children. In other words, if any of his property was left at the widow's death, he wanted it to go to his children and not by any gift or will to another."
Consider the effect of that interpretation. It wipes out nearly all the provisions of the will. That disposition of the property could have been expressed in three lines. Whatever he could have done if living, involves *242 the power to mortgage, lease for 99 years or any other term, sell the real estate and divide the proceeds among the children, preferring some above others. With that construction she could have divided the real estate among the children; could have cut some of them off with a dollar each, and could have given the bulk of the property to others; she could have disposed of all of it by will, provided she devised it to the children. Can any rational examination of the will gather such intention of the testator? Yet the conclusion is necessary if the lease under consideration is valid. If the life tenant could alienate for terms beyond her life she was not limited as to the duration of such term, provided only she deemed it for the benefit of herself and children.
All of this comes from definitions of "dispose of" apart from the context — apart from "while she lives," to which it is inseparably attached. There is no authority for a construction of a will which ignores pregnant phrases, and wrenches operative words from their context. Yet, the opinion boldly says that common-law rules of construction may be disregarded.
Therefore I dissent.
Addendum
This case having been transferred to Court in Banc, the foregoing opinion of RAILEY, C., in Division Two, is adopted as the decision of the court. Blair, C.J., Walker, Atwood andOtto, JJ., concur; Ragland, White and Graves, JJ., dissent;White, J., in a separate opinion filed.