148 Ill. App. 554 | Ill. App. Ct. | 1909
delivered the opinion of the court.
The bill neither alleges that there was any error or mistake in the deed, nor asks for any reformation of the deed. Under the deed Sarah Bean Anderson, the grantee, had a life estate in the land therein described, with a power to dispose of the land for her support during her lifetime, with remainder over to Christine Nelson, the appellee. Although the granting clause uses the words “convey and warrant,” the limitation in the habendum clause, restricting the estate to the grantee for life, with power to dispose of the land for her support, is not repugnant to the granting clause. Riggin v. Love, 72 Ill. 553; Welch v. Welch, 183 Ill. 237; Cover v. James, 217 Ill. 309; Griffiths v. Griffiths, 198 Ill. 632.
The contention of appellant is that the execution of “the will was an attempt to execute the power by therein providing that all her just debts should be paid, and then disposing of the remainder thereafter to Christine Nelson.”
Counsel for appellant cite and rely upon Griffin v. Griffin, 141 Ill. 373, as authority for their contention that the will was a defective execution of the power. In the Griffin case the devise was to the wife for life with power to sell for her support. She executed a deed, signing it personally but not as executrix. This was held to be a defective execution of the power. In that case the will also contained the clause, “at her death if there should be any of said real estate left after paying all her just debts then the aforesaid heirs may divide the same.” It was held that that clause made her debts a charge on the estate. “If the primary purpose of the devise is the support of the life tenant, and the remainder of the property which is not consumed by him for that purpose is given over to others upon his death, the life tenant may sell the land and he may use the proceeds of the sale for his support. He may not use the proceeds for another purpose; he cannot give them away; nor can the fee be taken by his creditors.” II Underhill on Wills, sec. 687; Rose v. Hatch, 125 N. Y. 427; Ford v. Ticknor, 169 Mass. 276; Small v. Thompson, 92 Me. 539. The clause in the deed involved in this case is: “Sarah Bean to have absolute title during her life with right to dispose of said land for her support, the remainder to go to Christine Nelson.” The power is limited to the right to dispose of the land. The execution of the will was not a disposal of the land, for the reason it only pretends to dispose of the proceeds of the land. The will set forth in the bill was evidently made in anticipation of the land being disposed of in some way during her lifetime. The testatrix does not devise the land to her executor in any way, or to any other person, or direct or empower the executor to dispose of it. While the words “to dispose of” are not synonymous with “sell,” the definition of the words must be considered with reference to the connecting words. In this case we are of the opinion that the words “to dispose of” with the connecting words mean to sell or place the land beyond her control by some act by which the control of the property would pass from her in her lifetime to the extent at least of the writing executed by her. The will was not a defective execution of the power, but was a total failure to execute the power contained in the deed.
We conclude the power given Sarah Bean Anderson by the prenuptial deed of her husband to be one which could only be exercised during the active enjoyment of the life estate in aid of that enjoyment, and that complainant was not entitled to have a lien decreed against said land; but we do not decide whether the leasing was or was not an exercise of that power for the term of the lease, for the reason that the bill alleges that the note executed by Oscar Harter for $100 rent maturing in February, 1908, is in the hands of David S. Holmes, executor. The executor is not a party to this, suit, and the Circuit Court did not have jurisdiction over Oscar Harter, and it also appears from the allegations of the bill that there are other claims allowed against the estate of Sarah Bean Anderson which were for her support, and such claimants were not parties to or represented in this suit. We conclude that neither anything the Circuit Court decreed or that this court might say would be conclusive of the rights of the parties, and therefore decline to discuss the question whether a leasing and payment of rent was or was not a disposal of the property to that extent.
In so far as the Circuit Court had jurisdiction of the parties and the subject-matter the decree dismissing the bill was proper, and it is therefore affirmed.
Affirmed.
