24 Neb. 215 | Neb. | 1888
Ebenezer McCulloch, late of Ohio county, AYest Virginia, departed this life in the month of November, 1870. Shortly before his death he made and published his last will and testament, by which, among other bequests and provisions, he made the following: ■
“ Item 3. The farm I purchased from the AYelchouse heirs I direct to be sold, either at private or public sale, as my executors shall see fit, and the money arising therefrom to be equally divided between my daughters, Jemima McCartney, Elizabeth Pemberton, Eebecca Mc-Culloch, Annie McCulloch, Eachel McCulloch, and Sarah McCulloch, the share pertaining to my daughter, Elizabeth Pemberton, to be retained in the hands of my sons, Ebenezer Zane and George C. McCulloch, who are hereby appointed trustees for that purpose, and who shall retain the same in trust for the benefit of said Elizabeth Pemberton and her children, her husband to have no control over the same whatever; but the said trustees may, with the consent of said Elizabeth Pemberton, invest the same as they may deem best, so my daughter and her children shall have the benefit of the same without control from her husband.”
The said will having been duly probated, and said farm
The said deed also contained the following clause, to-wit; “It is further expressly understood and agreed by and between the parties to this deed that said William B. Pemberton shall have the right to occupy, farm, and control said land for her so long as she may live or the legal title thereof remains in said trustees.”
On the 23d day of September, 1884, the said Elizabeth Pemberton died in Hall county in this state, leaving surviving her her husband, William D. Pemberton, and the following children, lawful heirs of her body and of her said husband, to-wit; Ora May Pemberton, Clarence Pemberton, and Ida Pemberton, all of whom are still infants, and having no children by any former husband.
On the 27th day of February, 1886, C. N. Payne & Co. caused an execution to issue upon a judgment docketed
The defendants claim that the facts set forth in the petition show that William D. Pemberton has an estate by the curtesy in the land as surviving husband of Elizabeth Pemberton, and that the decision of the case must turn on that question alone.
The statute on the subject of estates by the curtesy, as it stood before the amendment of 1887, is as follows: “ When any man and his wife shall be seized in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life, as tenant thereof by curtesy.” Sec. 29, Chap. 17, Gen. Stats.
The class of cases to which this statute has its plain and obvious application is, that of legal estates where the title is in the wife and possession in the family. Yet it seems to have been held, and the law is so laid down 'by Wash-burn in his work on real property, that similar statutory provisions apply "to “estates of inheritance, of which the
In the case at bar, the fund with which the estate was purchased was by the will of Ebenezer McCulloch bequeathed to trustees “for the benefit of said Elizabeth Pemberton and her children, her husband to have no control over the same whatever.” The limitations to and conditions of the bequest were sufficiently carried into and expressed in the deed of the reál property to the trustees to impress the character of the bequest upon the title, the same as though the bequest had -been of the land itself.
The case of Poole v. Blakie, 53 Ill., 495, involved a question almost, if not precisely, like the one now before us. That case is discussed and decided by Chief Justice Breese solely upon the intention of the grantor as expressed in the habendum clause of the deed bywhich the estate was granted. In the opinion he says, “It is a rule in construing deeds or wills, that the intention of the grantor, or testator, as manifested by the words of the writing, in connection with surrounding circumstances, roust be carried into effect.” The habendum clause of the deed in that case was as follows: “ To have and to hold the aforesaid premises and hereditaments., etc., unto the said Sarah Blakie, her heirs and assigns forever, to the end and intent that the same shall and may be for her sole and separate use, benefit, and disposal, notwithstanding her present or future coverture, free and clear of and from interruption, intervention, and control of her said husband, the said John
Returning to the consideration of the case at bar, can there be any doubt that the object and purpose of Ebenezer McCulloch in the use of the language of his will, as above quoted, or of his object and purpose in providing that the provision, and the only one, made by him in the final disposition of his property, for the benefit of or “pertaining to” his daughter, Elizabeth Pemberton, should go into the hands of and be retained by trustees ? I think there can be none, or that such object and purpose was that “the share pertaining to” her should be absolutely assured to the use of Elizabeth Pemberton, during her life, and at and after her death, to the use of her children, to the exclusion of her husband.
Blackstone, speaking of the requisites necessary to make a tenancy by the curtesy, says: “2. The seizin of the wife must be an actual seizin, or possession of the land, not a bare right to possess, which is a seizin in • law, but an actual possession, which is a seizin indeed.” 2 Black. Com., *127. Here it was evidently the intention of the testator that the seizin of the estate devised should remain in the trustees, not only in law, but also indeed, not only during the life of Elizabeth, but in the event of her death, leaving children during their childhood or state of depend
The judgment of the district court is affirmed.
Judgment affirmed.