48 Colo. 226 | Colo. | 1910
delivered the opinion of the court:
The court below determined the single question, as to whether the deed from Martha J. Cranmer, even though valid and conveying title in fee, matters not passed upon by the trial court, or here, carried a present right of possession, in view of the provisions of the will and the evident purpose and intent, as therein and thereby expressed, of the testator.
Whatever right, title or interest the parties to this suit have or claim, in and to the property in controversy, comes solely by, through and under the provisions of the will, nearly every paragraph of which breathes forth a fixed and settled purpose and intention on the part of deceased to keep his entire property intact, inviolate and undivided for years. By the terms of this instrument his purpose to leave the present possession and enjoyment of his entire estate in the hands of his executors is so manifest that none may, upon any ordinary or reasonable construction thereof, entertain the slightest doubt. The right to sell, lease, mortgage, manage and control all of the property of the testator, real or personal, is full and unrestricted, except only as to the block and lots at Seventeenth and Curtis streets, Denver, not here involved. Force and effect can be given such power and authority except only upon the theory that the present use and enjoyment be exclusively in the executors. By the express terms of the will it is specifically directed that the property shall not be divided until the youngest of the children of the testator shall have become of age. Further, always expressly subject to the terms and conditions of the will and to the powers, duties, rights and authorities of the executors thereof, the property is demised to the wife and the children, to the widow an undivided one-half, and the other one-half to the children in equal undivided parts; it is specifically provided that such interests shall not be received and shall not vest, until the youngest of the children then living shall have obtained its majority. Thus by this, the eighth paragraph of the will,.the possession and en
We have no hesitancy in declaring that, under the terms and provisions of the will, at the time of the commencement of this action and its trial, the right to the exclusive possession and enjoyment of the property in question was in the executors, and would so remain until the execution of the trust, when the youngest child obtained her majority. To hold otherwise would be to strip the executors of all power and authority to carry out the terms and provisions of that instrument definitely imposed. These terms and provisions are so specific to this end, that we regard citation of authorities, or further discussion, unnecessary, for to conclude, with absolute certainty, that plaintiff’s action was premature, one has but to read and consider the terms and provisions of the will, giving them their obvious and common sense meaning. The judgment of the court in dismissing the action, because it was prematurely brought, was right, and is accordingly affirmed. Affirmed.
Chief Justice Steele and Mr. Justice Musser concur.
