| Conn. | May 29, 1901
The controlling question in this case is this: Did the plaintiff, under the will of his father, take any interest in the proceeds of the sale of the Hallam Street property? If he did not, then, without reference to the other questions raised by the reasons of appeal, the trial court erred in rendering the judgment complained of. *4
The language of the will bearing immediately upon this question is this: "At the death of my said wife I give . . . to my two sons . . . for and during the period of their natural lives, the use of the property . . . on Hallam St., if undisposedof."
The plaintiff claims, in substance, that this gives to the two sons a life use in the Hallam Street property if it remains undisposed of at the death of the widow; and also, in the event of a sale of it by her under the will, gives to them a life use in such portion of the proceeds of such sale as may remain at her death unused by her for her support.
We think these words, "if undisposed of," as here used, mean if undisposed of at the death of the widow; for he had just given to her power "to sell or dispose of said Hallam St. property," and it is at her death that he gives the life use to his sons if the property is undisposed of. He gave the widow a life use in the Nichols Street property without the power to dispose of it, and so when he gives to his sons a life use in that at her death, it is given without any qualifying words; but having given his widow a life use in the Hallam Street property, and also full power to sell or dispose of that property, when he gives his sons a life use in that at the death of the widow, he adds the significant qualifying words, "if undisposed of." These words clearly imply that if the property should be disposed of by the widow by sale, the sons would take no interest in it under this clause of the will. In other words, under that clause the sons took a life interest in the Hallam Street property as real estate, conditioned upon the widow's failure to sell or dispose of it under the will; they took a contingent interest in that real estate, liable to be defeated by such a sale and conveyance of it. To read the clause here in question as giving to the sons a life use in the real estate if undisposed of by the widow, and also as giving to them a life use in the proceeds of a sale of it by her, is to do violence to the plainly expressed intent of the testator; it is to materially alter and add to the will rather than to construe it. The widow in her lifetime disposed of the Hallam Street property, and thereby defeated the contingent *5 interest given therein to the sons; and we think the fair construction of the will is that under it they took no interest whatever in the proceeds of that sale.
Under the will the widow had "permission to use any portion of the proceeds of such sale that she might deem necessary for her support." This language gives her power to use the entire proceeds if she deems them necessary for her support; but it does not, we think, make her the absolute owner of such proceeds, even though there is no gift over of such unused portion thereof as might remain at her death. Her power over the proceeds is ample for a certain purpose — her support — but it is after all a limited and restricted power, and not that of an absolute owner. We think that under the decisions of this court, the unused portion of the proceeds of the sale of the Hallam Street property at the death of the widow belonged, not to her estate, but to the estate of her husband, George Lawrence. Mansfield v. Shelton,
The construction here put upon the third clause of the will in question, makes it unnecessary to consider the reasons of appeal specifically and in detail. Inasmuch as the plaintiff took under the will of his father no interest in the proceeds of the Hallam Street property, the court below erred in rendering the judgment complained of, and said judgment is set aside and the cause remanded to the Superior Court to be proceeded with according to law.
In this opinion the other judges concurred.