169 Ill. 365 | Ill. | 1897
delivered the opinion of the court:
We think the merits of this controversy turn upon one question, viz.: what is the legal effect of that clause of the will of Reuben R. McDowell granting to his widow 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 * * * she shall make some arrangement to have it equally divided,” etc.? If it gives the widow but a life estate in the lands in question, vesting in his children a remainder subject to be defeated by an exercise of the power annexed to that life estate, then the lands are not subject to the judgments against the widow, and complainants have no standing in court.
It seems to be the contention of counsel for plaintiffs in error that the language of the will grants to the wife an estate in fee, without any remainder over, upon any condition, to the heirs of Reuben R. McDowell, and reliance is placed upon Redfield on Wills (vol. 2) to sustain the position. The rule there announced is, “that where the devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of apportionment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift.” We think counsel in error as to the application of that rule to this cause. Here the “first gift,” or estate of the first taker, is “for life.” 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. (Kaufman v. Breckinridge, 117 Ill. 305; Henderson v. Blackburn, 104 id. 227; In re Estate of Cashman, 134 id. 88; Walker v. Pritchard, 121 id. 221.) Prom the language, “in case anything be left after her death,” it is also manifest that the testator intended his wife to have the right to absolutely dispose of the property, even beyond her death, if she deemed it necessary and proper. That, she did not do. She died without disposing of the property, or even making any “arrangement” for its disposition, as indicated by the testator. Her life estate and all power over the property were then at an end, and, of course, the property was not subject to be levied upon by her creditors.
Our conclusion upon this point makes it unnecessary to discuss the allegations of the bill charging fraudulent conveyances by the widow. To admit that the mortgages mentioned were fraudulent and set them aside could in no way benefit complainants.
We are satisfied the decree of the circuit court dismissing the bill was right, and should be affirmed.
Decree affirmed.
