Powers v. Wells
91 N.E. 717
Ill.
1910
Check Treatment
Mr. Chief Justice Farmer

delivered the opinion of the court:

As in the view we take of this case its determination depends upon a construction of the third paragraph of the will of Anson S. Piper without reference to the oral testimony in the case, it will not be necessary to pass upon the competency of appellants Powers and O’Brien as witnesses, to the discussion of which a portion of the briefs of both parties is devoted.

The land in controversy is a part of section 19 and was disposed of by Anson S. Piper in the third paragraph of his will, which is quoted in full in the preceding statement. By the first clause of said paragraph the testator devised to his wife, Julia E. Piper, the remainder of his estate, real and personal, which included the land in section 19, “to be used and disposed of during her life the same as I might do if living.” Following- this language power was conferred upon Mrs. Piper, who was also appointed executrix of the will, to sell, exchange, invest and re-invest the property; also power to distribute it by gift among the testator’s children during her life, and the further power to dispose of it by will among them according to her discretion. If any of the estate remained undisposed of at the death of Mrs. Piper the will directed it to be equally divided among the testator’s children, and their issue if any were dead, such issue talcing- the share the deceased child would have been entitled to if living. The chancellor construed this paragraph of the will to give Mrs. Piper a life estate, with certain powers to sell, exchange, invest and re-invest and to distribute by gift among the testator’s children during her life or to appoint the same' among them by will, and held that Mrs. Piper had no power to execute leases extending beyond the period of her lifetime; that the leases and options executed by Mrs. Piper were co-extensive only with her life estate and upon her death became invalid, except, at most, from year to year, and could not be reformed or extended to cover the land in section 19.

Appellants contend that the language of the first clause of paragraph 3, authorizing Mrs. Piper to use and dispose of the property during her life the same as the testator might have done if living, confers power upon her to do anything that the testator himself could have done during his life, and as he would have had the power to make the leases and options, it follows that Mrs. Piper had the same power. We cannot agree to this construction, as it seems clearly and palpably contrary to the intention of the testator when all the language" of paragraph 3 of his will is considered. If the effect of paragraph 3 was to give his" widow the same interest in and power over the property he had while living, it would have given her the fee. Such clearly was not his intention and it is not so- contended by appellants. Immediately following the estate devised to the widow, the testator in clear and explicit terms conferred power upon her to sell or exchange the property and invest and re-invest it or distribute it among his children during her life or by will at her death, and if any of the estate remained undisposed of by the widow under these powers, his will directed that it should go to his children and their issue. Under said paragraph 3 Mrs. Piper took a life estate, with power to sell, exchange, invest, re-invest, etc. This did not raise her estate to a fee, and the remainder vested in the children of the testator, subject to be divested by the exercise of the powers conferred upon Mrs. Piper by the will. Ducker v. Burnham, 146 Ill. 9.

In Hamlin v. United States Express Co. 107 Ill. 443, the will under consideration gave to the testator’s widow all his estate, real and personal, after the payment of his debts, “for her own use and benefit, with full power to hold, use, enjoy or dispose of the same in any manner she may choose, and if she so desires she shall have full power and authority to convey any and all of my real estate by absolute conveyance in fee simple.” The will further provided that at the death of the widow, if any of the estate remained undisposed of by her, it should be sold and the proceeds distributed according to directions given in the will. The court said (p. 449) : “The language of this will is such as to leave no rational doubt that it was intended the wife of the testator should take a life estate with power of disposing of and conveying the fee, and that the specific legatees should take the remainder. The wife is given everything, with full power to use, enjoy and dispose' of the same and convey the real estate by absolute conveyance in fee simple. This, if unqualified, would, of course, vest a fee simple in the real estate; but being qualified, in order to give the language of the qualification any effect this language must be restricted to the life of the wife of the testator. It is contemplated there will be real estate which shall not have been sold by the wife in her lifetime, and this is to be sold, not for the benefit of the wife’s estate, but for the benefit of the estate of testator and the proceeds divided among other designated objects of his bounty.”

In Skinner v. McDowell, 169 Ill. 365, the will under consideration gave the testator’s wife the residue of his estate, “to be sold, retained and exchanged, used and managed by her as she may think proper during her life; and in case anything may be left after her death, it is my desire that she shall malee some arrangement to have it equally divided among our children,” naming them. The court held the widow took a life estate, only, with power to sell, and said (p. 369) : “True, the life tenant is given the right to sell, retain, exchange, use and manage it ‘as she may think proper,’ but under the decisions of this State her title is not thereby enlarged into a fee. The rule is well established by our decisions that a life estate may be created with power to dispose of the fee and limit a remainder after the termination of the life estate. The power of absolute disposition annexed to a life estate does not enlarge it into an estate in fee.”

Wolfer v. Hemmer, 144 Ill. 554, relied on by appellants, is not in conflict with the cases above cited and does not sustain appellants’ contention. In that case the first paragraph of the will of John Hemmer gave his wife, “her heirs and assigns,” certain real estate, without any qualifications or limitations whatever. The second paragraph gave his wife a life estate in all the remaining property of the testator, real and personal. Said second paragraph is almost in the.identical language of paragraph 3 in the will here under consideration, and gives the same powers to sell, exchange, invest and re-invest, distribute and appoint the property by will, that is given in the third paragraph of the Anson S. Piper will. A controversy arose between persons who were heirs of both John Hemmer and his wife and persons who were heirs only of the wife, as to whether she took the fee in the property devised by the first paragraph of the will or whether that paragraph was limited by the second so that she took only a life estate. \It was held as to the property devised by the first paragraph the widow took an estate in fee simple, and that this was not limited or qualified by the second paragraph.

In construing wills the intention of the testator should be ascertained from the consideration of the entire will and effect be given to that intehtion. The rule was well expressed in Hamlin v. United States Express Co. supra, in the following language: “The intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker.” The construction placed upon paragraph 3 of the will under consideration by the chancellor is in harmony with the requirements of this rule and gives effect to the intention of the testator without violating any rule of law.

Mrs. Piper took no power or authority under the words giving her the right to use and dispose of the property during her life except such power as is iricident to a life tenancy, and a life tenant has no authority to encumber the property, by lease or other encumbrance, beyond the termination of the life tenancy. (Hoyt v. Jacques, 129 Mass. 286; Seymour v. Bull, 5 Day, (Conn.) 388; Dean v. Adler, 30 Md. 147; Perry on Trusts,—5th ed.—sec. 769; 31 Cyc. 1080, 1081.) The words “to be used and disposed of during her life” mean no more than that Mrs. Piper should have the use, control and management of the property so long as she lived. There is no intimation in the will that if she exercised the power of sale the proceeds should be hers to dispose of absolutely and for her own use and benefit. The power of sale was limited to the purpose of investment and re-investment or distribution of the proceeds, and this power could only be exercised for the purpose pointed out in the will conferring the power. As a life tenant Mrs. Piper had no power to make any disposition of the land that would interfere with the rights of the remainder-men after her death. Her right to sell was by virtue of having been made donee of that power by other provisions of the will following those giving her a life estate in the premises.

We think there is no merit in the contention of appellants that appellee is by her acts and conduct subsequent to the death of the life tenant estopped to deny appellants’ right to the use of the property under the leases. She has not by any act or by her silence induced appellants to do anything or take any position to their prejudice. It is an essential element of an equitable estoppel that the person asserting it shall have done or omitted some act or changed his position in reliance upon the representations or conduct of the person soug'ht to be estopped. Knoebel v. Kircher, 33 Ill. 308; Smith v. Newton, 38 id. 230; Hefner v. Vandolah, 57 id. 520; Gillespie v. Gillespie, 159 id. 84.

In our opinion the decree of the chancellor in dismissing the bill and granting the relief prayed in the cross-bill was correct, and that decree is affirmed.

Decree affirmed.