117 Ill. 305 | Ill. | 1886
delivered the opinion of the Court:
The main question in this case is upon the construction of the will of Stephen H. Long,—whether it ¡conferred the power to dispose of the lands in fee, or only the power to dispose of the life estate, or estate during widowhood, which was devised to the widow.
The will gives to the widow, Martha Long, all the testator’s real and personal property, to have, hold and use, so long as she remains his widow, and reliance is had on the general rule that where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only coextensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could make, unless there are other words -clearly indicating that a larger power was intended. (Welsch v. Belleville Savings Bank, 94 Ill. 191;. Henderson v. Blackburn, 104 id. 227.) We recognize the rule, and the inquiry before us is, whether, taking the whole will together, in view of the state of the testator’s family and property, it indicates the intention to give a power to dispose of anything more than the widow’s estate for life, or during widowhood, in the property.
The will contemplates that the testator’s entire family,— his widow, his two sons, one of whom was of weak mind and unable to take care of himself, and the other, who was .to some extent a charge upon the testator from his intemperate habits, his daughter with her then four small children, and her husband,—should all remain and live upon the homestead, and that the widow and testator’s children should have a comfortable subsistence out of his property. It was a prime object that the testator’s homestead should be kept in good condition and repair in all respects, in failure whereof the homestead was to go to the city of Alton for a female seminary. ■ This object would require expenditure of money. The personal property was of inconsiderable amount. 'The large quantity of real estate was wholly unimproved, and unproductive, with the exception of the homestead and some sixty or seventy acres of the Madison county land under cultivation, the rent from which would hardly more than pay the taxes on it. The taxes upon the real estate were considerable. The age of the testator’s wife at the time of the making of the will was about sixty-one years. Under such circumstances is made the devise, “I give and bequeath to my beloved wife, Martha Long, all my goods, estates and chattels, real, personal and mixed, to have, hold and use the same so long as she may remain my widow, said goods, estates, etc., to be disposed of and used agreeably to her direction and approval, and in such manner as she may deem most conducive to the welfare and comfortable subsistence of herself and our beloved children, William D. Long, Henry 0. Long and Lucy L. Breckinridge.” It is not the mere power of disjiosal which is given here, nor power of disposal for the widow’s own use and benefit, but the power of disposal for the comfortable support of herself and the three children of the testator, circumstanced as they were. There was given power to dispose of the property for the support of the testator's family. The testimony shows most fully that the widow’s life estate, or estate during widowhood, in the property, was utterly valueless as a resource for the family’s support; that it would have beefi impossible to have made sale of-it for .any amount which would contribute materially to that end. This must have been known and seen by the testator at the time he made his will, from the nature of the property. Where, in such case, there is given to the life tenant the power to dispose of the property for a certain purpose, which purpose it would be impossible to answer by disposition of the life estate, and which could be effectuated only by sale.of the property absolutely, the power of disposition given must be held to be that which is necessary for the accomplishment of the object for which it is given,—to be the power of absolute disposition. The will was drawn by the testator’s own hand, in ignorance, it is to be supposed, of any technical rules of construction. And when he gave to his wife power to dispose of his goods and estates, real and personal, in such manner as she might deem most conducive to the welfare and comfortable subsistence of herself and their children, it was his intention the family should be supported out of the property, and we can have no doubt that his meaning was to give the power to dispose of the property itself, if it was needed for that purpose, and not merely the widow’s estate -for life in the property. And to hold that because the testator had given to the widow an estate for life, or during widowhood, in the property, the power which he gave to dispose of the property was a power only to dispose of her-estate for life, or during widowhood, in the property, would be to make use of a mere artificial rule of construction to frustrate a testator’s clear meaning. Goods and chattels and lands are grouped together under the power of disposal which is given. It is the same power of disposal which is given in respect of each. It is unreasonable to suppose that it was only the widow’s estate for life, or during widowhood, in the goods and chattels, and not the goods and chattels themselves, which the testator intended she should sell for the support of- the family. Item fourth, in providing that no sale should be made of the homestead, affords some implication that power of sale of the whole property had been given, and that it was deemed necessary to make exception of the homestead.
It is objected that all of the extrinsic testimony as to the ■lands being unimproved and producing no income, and as to the testator’s family, etc., is improper in this case. This objection is not well taken. Rule 10, of the general rules of construction of wills, laid down by Jarman, in his work on Wills, (vol. 2, p. 841,) is: “The court will look at the circumstances under which the devisor makes his will,—as, the state of his property, of his family, and the like.” This court has often held that there may be created a life estate with power to sell and convey the fee, and limit a remainder after the termination of the life estate. Fairman v. Beal, 14 Ill. 244; Funk v. Eggleston, 92 id. 515; Hamlin v. United States Express Co. 107’id. 443; Hendersons. Blackburn, 104 id. 227; Markillie v. Ragland, 77 id. 98. It depends upon the intention, to be gathered from the whole instrument, in the light ' of the circumstances surrounding the testator, whether the power be given.
We are of opinion-that by this will the widow was clothed with a power of the disposition of the absolute estate in favor of herself and children, and that by the exercise of that power •her grantees here took the fee, and not her mere life estate in the lands.
There is no charge in the bill of collusion or fraud respecting the sale .of the property, or that it did not sell for its full value, or that the proceeds of the sales were not necessary, and used for the support of the family.
The view we have taken renders it unnecessary to consider other important questions which are raised in-the case.
The decree will be reversed, and the cause remanded for ■further proceedings in conformity with this opinion.
Decree reversed.
