151 N.E. 783 | Ohio Ct. App. | 1925
Margaret A. Knicely and Ella May Knicely jointly purchased the property in question August 26, 1905. Margaret Knicely made a will June 26, 1915. She died November 25, 1923. Her will was probated December 23, 1923. Ella May Knicely died December 21, 1924. The executor under her will brought an action to sell the property to pay debts and bequests under her will.
Margaret A. Knicely, in the second paragraph of her will, used the following language:
"I give, bequeath, and devise to my beloved niece, Ella May Knicely, all my real estate and *175 personal property for her own use and benefit forever. Except she pay to my brothers William J. Knicely, Alva Knicely, and sister Amanda one dollar each, when claimed by them, and I hereby appoint my niece, Ella May Knicely without bond, with full power to sell, mortgage, lease, or dispose of the whole or any part thereof of my real estate or personal property.
"At her death, should there anything remain of my estate, I bequeath it to the Old People's Home in Cincinnati."
The question is: Did Ella May Knicely take a fee or a life estate in the property?
The will gives the property for the use and benefit of Ella May Knicely, and expressly confers the power to sell or dispose of it. The language is: "I give, bequeath, and devise * * * for her own use and benefit forever." If it were not for the qualifying or limiting words, the gift would have been a fee in the estate, and the power of sale or disposition, subsequently added, would be surplusage. If a life estate was given, she had only the use of the property. But when to the gift the words "for her use and benefit" are added, coupled with the power to sell, etc., they will be held to mean that if she sold the property, and used the proceeds, the purchaser would take a good title, but that if she held and used the property, and died without having disposed of it, all her right and title to the property would end with her demise. The words of limitation are a part of the sentence making the bequest. It is clear that the testator intended to give the devisee a life estate, with the power and discretion *176 to use part or all of it, as in her judgment was for her own use and benefit.
Counsel cite the case of Clark v. Clark,
On authority of Tax Commission of Ohio v. Oswald, Ex'x.,
The judgment of the court of common pleas will be affirmed.
Judgment affirmed.
BUCHWALTER, P.J., and HAMILTON, J., concur. *177