34 Minn. 173 | Minn. | 1885
The legal questions involved in this case arise upon the construction of the terms of the will of Charles Oertle, deceased, which, after provisions for the payment of debts, disposes of all the residue of his real and personal estate as follows: “I give, bequeath, and devise to my beloved wife Josephine all my real estate and personal property, without exception, of which I may be possessed at the time of my death, * * * to hold and possess during the term of her natural life for her own exclusive use and benefit. After the death of my said wife, any and all of the property and estate mentioned above, and which, or any part of the same then left by her, shall be divided among my children equally, share and share alike. As a special provision of this my last will and testament, I make this a condition that my said wife shall, out and from said property left her, provide for the maintenance and a good education of my children. And I hereby make, constitute, and appoint Otto Winterer and Louis Horst executors of this my last will and testament, with power to sell and dispose of all the property, both real and personal, at public or private sale, at such time or times, and upon such terms, and in such manner, as to them shall seem meet.”
The probate court adjudged and determined that the surviving wife was entitled to a life-estate only in the property real and personal, and further ordered that, before taking possession thereof, she execute a bond, to be approved by the court, for the safe-keeping and faithful accounting by her of the property or capital fund received by her, to the end that the same might be turned over unimpaired to the children of the testator. Upon appeal, the judgment of the probate court was so far modified that it was ordered that the widow should “have power and authority to use, consume, and expend such part and portion of said property as may be necessary for her exclusive use and benefit during the term of her natural life, and to provide for the maintenance and good education of said children; but that said executors have the sole and exclusive power to sell any of said property at any
The questions involved require a careful consideration of the several clauses of the will. A power of sale is vested in the executors, to be exercised in their sound discretion. They are, however, given no other authority or control over the property, and have no active trust to execute in or about the same. They have simply a naked power of sale, and the title passed subject to the exercise of such power. Tobias v. Ketchum, 32 N. Y. 319, 329. As respects the real property, a life-estate vested in the wife, and a remainder in fee in the children, subject to be defeated by a sale. Gen. St. 1878, c. 45, §§ 13, 33; Ackerman v. Gorton, 67 N. Y. 63. The same rule is applicable to the personalty; and interests for life and in expectancy may be created and limited therein in the same manner. 2 Kent, *353; 4 Kent, *282; Burleigh v. Clough, 52 N. H. 267, 278; Sampson v. Randall, 72 Me. 109. In case of a sale of the property, the tenant for life and devisees or legatees in remainder would take the same interests in the proceeds, respectively, as they had in the property. The income would go to the widow, and the principal at her death to the children. Ackerman v. Gorton, supra.
The general rule applicable to the construction of wills is that the intention of the testator, as collected from the whole instrument, is to govern, provided it be not inconsistent with the rules of law. The purpose of the testator in this case was that his property should be used and preserved for the exclusive benefit of his family. Any construction which would permit any part of the estate to be diverted, for the benefit of strangers to his blood or affections, is inadmissible unless necessarily resulting from the terms of the will. To effect
1. The express provision or limitation of a life-estate, with remainder over, so plainly defines the nature of the estate and interest intended to be given to the widow that the subsequent clauses cannot be construed as enlarging it into a fee, though the language used therein may create a charge or power of disposition in certain contingencies upon or over the capital fund. The general rule is stated by Chancellor Kent as follows: “If an estate be given to a'person generally or indefinitely, with a power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case, the express limitation for life will control the operation of the power, and prevent it from enlarging the estate into a fee.” 4 Kent, *535. “Words'of implication do not merge or destroy an express life-estate, unless it becomes absolutely necessary to uphold some manifest general intent.” Id. *319; Burleigh v. Clough, 52 N. H. 267, 277. This was the common-law rule, under which a devise to one generally, without words of inheritance, or otherwise indicating an intention to grant a greater interest, passed an estate for life only. An estate thus given generally, with a power of disposition, by implication carried the fee. But then, and now since the statute, an intention to convey a less estate, expressed or clearly implied, will control. 4 Kent, *537; Gen. St. 1878, c. 47, § 2; Jackson v. Robins, 16 John. 537, 558, 559; Johnson v. Battelle, 125 Mass. 453; Stuart v. Walker, 72 Me. 145.
The contention that in this case the widow took any greater interest or estate than that of a tenant for life cannot be supported; that is. to say, the authority to use or dispose of any part of the property or principal, implied from the language of the will or the charge therein imposed for the support of the children, is the grant of a power and not of property. Herring v. Barrow, L. R. 13 Ch. Div. 144.
The construction in each case will, of course, turn largely upon the peculiar language used and its connection. Thus, in Martin v. Eaton, 57 N. H. 154, the words “remaining property,” used after provisions for payment of debts and erection of grave-stones, gave no additional authority to the life-tenant. The construction in Green v. Hewitt was doubtless too narrow, because, with the exception of items of perishable property, which it might, perhaps, be the duty of the life-tenant to sell, convert into money, and invest, the grant of such personal property as might wear out and perish in the using during such tenancy would necessarily imply the right to so wear it out or
But in Henderson v. Blackburn, 104 Ill. 227, 232, it was held that the words “if there is anything left” implied a power of disposal of the entire estate, or such part'of it as might be necessary for the use of the life-tenant. A similar conclusion was reached in Clark v. Middlesworth, 82 Ind. 240, 246, where the testator devised all his property, real and personal, to his wife during her life, “and at her death, should anything remain, the same to be divided among my heirs-at-law.” So in Brandow v. Brandoio, 66 N. Y. 401, on the death of the life-tenant it was provided that all the estate, real or personal, which might “be found then” should be equally divided among the testator’s children. There the property was given to the widow for life, and she was charged with the duty of caring for and educating the children. She was held entitled to use the corpms of the property, if necessary, for the support and education of the minor children. In this case the language, “and which or any part of the same then left by her,” is sufficient to indicate an intention on the part of the testator to grant the right to use some portion of the corpus of the estate, upon the condition that it should be found necessary in order to give effect to the intention of the testator.
3. In respect to the provision for the support and education of the children by the life-tenant, it is to be construed in connection with the clauses of the will which we have just been considering. Though the word “condition” is used, it is clear that the obligation on her part to provide for their support and education is a continuing one, at least as long as it should be reasonably necessary. If she consents to take under the will, she is bound by its provisions; and she is required to make such provision “out and from said property left her, ” in consideration of the gift and devise made to her. She is therefore to use the property for their benefit as well as her own. The property is charged in her hands as tenant for life; and
We think this construction best accords with the purpose of the testator as manifested by the several clauses of the will read together. That is to say, the income is to be applied to the support of the widow and maintenance and education of the children; and in case the same should prove insufficient, so much of the capital fund may be so used as shall be reasonably necessary therefor. She is not to use the principal while the income is sufficient. This intention would appear more clearly, perhaps, if the clause providing for the support of the children had immediately followed the devise to the wife; but it makes no difference in the construction of the will. The power to sell and convert the property is conferred on the executors, and not on the widow. This is not inconsistent with her right to appropriate such portion of the capital fund as may be proper. The clause granting this power to the executors operates as a restraint upon the power of disposition by the widow, but the several clauses must be construed together and in subordination to the purpose of the testator as manifested by the entire instrument, and the power given to the executors must be exercised so as to secure to her the benefit and enjoyment of the estate as provided by the will.
4. In such cases it is not the practice to require of the life-tenant a bond as a condition of the delivery of the property, nor of its retention, unless there is danger of its being wasted, secreted, or removed. But an inventory should be filed, as was directed in this ease, and the
The case is remanded, with directions to modify the judgment in conformity with this opinion, and charging the income of the estate primarily with the support and education of the children.