90 Ky. 126 | Ky. Ct. App. | 1890
delivered the opinion or the court.
In tlie year 1878 Samuel McCullough died in tlie comity of Payette, leaving his widow, Harriet McCullough, surviving him, to wliom he devised his estate in the following manner: “To my most precious and well beloved wife I give, during her life, all my estate, real and personal, whether in possession or in action, with full and ample authority to dispose of the whole of it as she pleases. At her death, should she not have previously made a testamentary distribution of all remaining undisposed of by her, I desire that such remainder shall be distributed as herein -directed.
“2. To my niece, Mrs. Mary, of Indianapolis, I give my house and lot on High street where I now reside,” ■etc. The testator then proceeds to make other special devises, and directs his executors, within two months after the death of his wife, to sell and dispose of all the real estate left undisposed of by himself or his wife, and to distribute the proceeds as directed, etc.
They had no children, and his wife, Harriet, dying intestate in the year 1887, leaving much of the prop
The personal representative of McCullough filed his petition in equity against the devisees of one and the next of kin of the other, in which he claims that the estate undisposed of passed by the will of the testator. The heirs of Harriet McCullough (the wife) filed an answer, in which they -.claim that the estate passed under the statutes of descent and distribution to the heirs of Harriet. The chancellor below adjudged, on a demurrer to this answer, that on the death of the wife, intestate, the real estate in Kentucky descended to her heirs in-fee, and the personal estate to her heirs ■ and distributees. In other words, that, under the will of the husband, his -wife took the absolute estate, without limitation .or restriction. The construction by the devisees is, that by the express terms of the will she took a life estate only, -with the power to dispose of it if she saw proper during her life, or at her death by last will and testament, and not having exercised that power, the estate .left passed by the will; that while the life-estate might have been enlarged by the exercise of the power of disposition, the wife, having failed to exercise that -power, left the estate to pass as the testator directed ’it should.
The power of absolute disposition carries with it, nothing else appearing, ‘the absolute property in that which is to be 'disposed - of, but there may be such an intention arising from the language used as will limit the power or .confine fits .exercise to the life of the .first takers.
In considering a question of the importance that this is, although aided by arguments on each side, evidencing great ability and much research, we find it difficult to reconcile many of the cases with the general doctrine on the subject, or to follow them, unless we lose sight of the intention of the maker of this will, and adopt a rule of construction so technical in its' character and application as to defeat the-
After, a careful review of all the authorities to which our attention has been called, the rule sanctioned and followed is this: If the estate is given or devised generally or indefinitely with a power of disposition, it passes a fee, but when the devisor or grantor owning the fee gives to the first taker an estate for life, with the power to dispose of the fee, no greater estate is vested in the first taker than that carved out of the fee and vested in him by the devisor or grantor. ' He is given a life estate in express terms, and the failure to exercise the power gives to the remainderman the fee, because no disposition having been made of it by the life tenant, he takes under the will or conveyance. It is said “if an estate be given to a person generally or indefinitely, with a power of disposition, it carries a fee, unless the testator gives the first taker an estate for life only, and annexes to it a power of disposition.- In that case the express limitation for life will control the operation of the power and prevent it enlarging the estate into a fee.” (4 Kent, Commentaries, 535-536.)
Counsel for the appellees has referred us to several cases, English and American, in direct antagonism to the doctrine laid down by Chancellor Kent. In Barford v. Street, 16 Vesey, Jr., 135, there was a devise of real and personal estate in trust to pay the rents and dividends to Mary Barford during her life, and after
In Pulliam v. Byrd, 2 Strob. Eq., 134, and in Smith v. Bell, Mart. & Y., 302, the same rule was recognized, the court remarking in the first-named case that “when a life estate is created in terms, and to this is added a power of ulterior disposition unconfined as to mode or object, no case has been produced suggesting that this power is a naked power, and required to be exe
In view of these authorities it is maintained that although the wife, Harriet, in this case was given a life estate, there was coupled with it a power to dispose of the entire estate for her own use, or that of another, at any time during her life, or to pass by her will at her death; and as no greater dominion could have been exercised over it by the devisor if he were living, the fee must necessarily have passed to the wife, and such was the intention of the testator. The argument certainly strikes one with much force; for if the dominion over the estate is such that it can be used, conveyed, devised or otherwise disposed of by the donee without restriction or limitation, the power over it is as great as any that could have been exercised by the grantor or devisor in whom the title to the estate was originally vested. YYe perceive, however, no reason why such a power may not be conferred if it appears from a consideration of the whole will that the intention of the testator was not to create a fee in the first taker. The right of absolute dominion and control, with the power to sell or devise, would, unexplained, pass the absolute estate.
The wife must have known the contents of the will, and although living for many years after her husband’s death, failed or declined to disturb the devises to his kindred, but left the estate to pass in the precise manner the testator wished. The fact of a life estate
Where an estate is given for life only, though a general power of appointment is annexed, it does not convert the estate into a fee, but the donee takes a life estate, unless there is some manifest general intent to the contrary in the instrument creating the power. (4 Kent, Comm., 319; Pulliam v. Byrd, 2 Strob. Eq., 134; Bentham v. Smith, 34 Am. Dec., 599; Johnson v. Cushing, 15 N. H., 298.)
In 16 Johnson (N. Y.), 587, in the case of Jackson v. Robbins, Chancellor Kent said: “We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee, and the only exception to the rule is, where the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases.”
In the case of Glover v. Stillson, 56 Conn., 316, the-will contained this provision: “I give, devise and bequeath the residue of my estate, both real and personal, unto my sisters, Polly A. Stillson and Mary A. Stillson, for the term of their natural lives, hereby empowering my sisters to dispose of any portion of my estate, both real and personal, if they should so desire.” It was held that the life estate was not enlarged into a fee by the power given to sell.
In Funk v. Eggleston, 92 Ill., 515, the testator devised, after the payment of debts, “two-thirds of my real and personal estate” to his wife “during her life, with full power and authority for her to dispose of the same as she may think proper,” by will or otherwise, before her death. The testator then proceeded to-dispose of what estate might remain undisposed of by his wife at her death. It was held that the wife had a life estate only, with power of disposition by will or deed.
In the case of Moore v. Webb, 2 B. M., 282, the life tenant had executed the power, and in Ball v. Hancock, 82 Ky., 107, there was no estate for life. In Caleb
The testator in this case is particular to name each one of those to take in remainder, making a special devise to each, and in more than one provision of the will is disposing of what his wife may leave of the-devised property by reason of her failure to exercise the power given her. We think there is a marked distinction between a power given to one who already has the fee and that given to a life tenant, who may
The judgment is, therefore, reversed, and cause remanded with directions to sustain the demurrer to the answer, and for proceedings consistent with this opinion.