State v. Smith

| Conn. | Mar 13, 1885

Park, C. J.

Reed Anderson disposed of one half of all his property by will in fee to his wife, and then in the same will made disposition of the other half to her as follows: “ And furthermore I give and bequeath to my wife Sophia the remaining half of my estate, both real and personal, with the right to sell, dispose of, convey and use the same without any restrictions whatever during her natural life; and at her decease, one half of what remains of my estate I give and bequeath to my brother Willis Anderson, to my sister Polly Cone, and to my sister Nancy Hungerford, to be equally divided between them.”

Whether this part of the will carries the fee of the property, or a life estate merely, is the principal question in the case. This question depends upon another, and that is, whether the expression “ during her natural life ” was used to describe the estate given, or merely the time during which she may “ sell, dispose of, convey and use ” the property “ without any restrictions whatever.” It seems clear to us that the language was used in the latter sense.

It was well settled in McKenzie's Appeal from Probate, 41 Conn., 607" court="Conn." date_filed="1874-11-15" href="https://app.midpage.ai/document/mckenzies-appeal-from-probate-6579959?utm_source=webapp" opinion_id="6579959">41 Conn., 607, that a general devise, coupled with a power of sale or disposal, passes a fee of the property, even if there be a devise of the' remainder, and especially so when the remainder is described as what remains. Many other cases might be cited, but our own decision is sufficient.

But the plaintiff claims that this case does not come within the principle of these cases, for the reason that here is a devise of an express life-estate, and the right given “to sell, dispose of, convey, and use the same without any restrictions whatever,” is a right to so dispose of the life-estate only. Such a construction deprives the “ right to sell ” of all meaning, and renders the clause entirely superfluous, a result to be avoided in all cases if it can be done, and especially so in wills, where a cardinal rule prevails that every clause shall have an operative meaning given to it if-possible.

This same claim was made in Lewis v. Palmer, 46 Conn., 454" court="Conn." date_filed="1878-10-15" href="https://app.midpage.ai/document/lewis-v-palmer-6580836?utm_source=webapp" opinion_id="6580836">46 Conn., 454. The court disposes of it as follows: “Conceding that the second clause of the will in question was intended to vest in Sarah Palmer a life-estate only, the case falls within the rule, unless the expression for her to dispose of as she may think proper, right or just,’ refers to the use, and not to the estate itself. If that is the true meaning of the will then the words quoted are without force, for the power to dispose of the life use existed without them. The rule requiring us to give effect if possible, consistently with the rules of law, to all the language of the will, will attach a meaning to the phrase quoted, and, if we give it any meaning at all, we must regard it as meaning the estate and not the mere use.” But in this case the language used can have no other proper construction. The words “the same” must refer to the property in the remaining half of the estate. When these words were used the testator had said nothing about any life-estate; he had said, merely, I give and bequeath the -.remaining half of my estate to my wife, with the right to sell and dispose of the same. It seems too clear for controversy that these words cannot refer to anything else than the property in the remaining half of the estate.

This construction of the right to dispose of the property removes all obscurity from the words “ during her natural life,” and gives them a natural and well defined meaning. The right to dispose of the property is given to be exercised during her natural life, and not afterwards. She can do as she pleases with the property while she lives, but she shall not dispose of it by will, for that will take effect after her death, and the testator meant, if anjdhing should remain of this part of his estate at the death of his wife, that it should go to his brother and sisters. It is true that the devise of the remainder is not clearly expressed. Literally the clause, “one half of what remains of my estate,” applies to the whole estate, but such construction would leave one half of the remainder intestate, which is a result to be avoided if possible. Redfield (on Wills, Yol 2, page 116,) says:—“ The courts have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy, unless absolutely forced upon them.”

And besides, the first half of the estate described in the will is given absolutely to the wife, and the last half is given wholly by itself, the bequest commencing with the words “ and furthermore,” which mean something in addition to what has been already given, and not something to be subtracted therefrom, which might be the case if the clause applied to the whole estate.

But it seems to be conceded by the plaintiff that the words, “what remains,” apply only to'the last half of the estate, and the clause should be understood as though it read, “ what remains of this half of my estate; ” still he claims that the words create an absolute remainder in the half, and should not be construed in the sense of what may remain. He insists that here lies the distinction between this case and McKenzie's Appeal from Probate, supra. But is there any substantial distinction? These words follow the gift of unlimited power to the wife “ to sell, dispose of, convey, and use the property without any restrictions whatever.” She could sell the entire property at any time and put the proceeds in her pocket. How then could there be an absolute remainder, or any remainder, unless she was disposed to leave it? It was wholly at her option whether there should be any or not. Such being the case the words, “ what remains,” can have no other construction than what may remain, because the will leaves it all uncertain whether there would be any remainder or not.

The plaintiff relies much upon the word “ use,” in the clause quoted, to show that the wife took only a life-estate in the second half of the property, and he construes it to mean merely using the property for income and enjoyment; whereas the word is used in connection with the words “ without any restrictions whatever.” This is a very strong expression. She may use the property in any manner she may be disposed. She may sell it and dispose of the proceeds as she will. This word, in its connection, has as extensive meaning as either of the other words used, and signifies entire dominion over the property during her life.

It follows, therefore, that the wife of the testator had an absolute estate in all the property, with the exception that she could not dispose of the last half of it by will. But this limitation is of no importance in this case, for it must be conceded that she conveyed an absolute title to the property by the deed she gave to the grantee, and by the disposition she made of the personal estate. It can make no difference that a part of the property was disposed of by gift. She had a right to dispose of it in any manner that she chose. If she had the right to sell or otherwise dispose of the entire property, she had the right to convey an absolute title. This is too clear to be questioned.

It appears in the case that she did so convey the entire estate, and when the Security Company was appointed administrator de bonis non, there was no estate whatever to be administered. All the debts had been paid, and no person had any property interest therein.

It is alleged in the complaint that the suit is brought for the special benefit of the Security Company as administrator on the estate, and inasmuch as an inventory of the estate was never made by Sophia Reed, nor any account of administration rendered, the claim is that a recovery should be had in damages equal in amount to the value of all the property of the estate at the time she neglected to file an inventory. If such recovery should be had, what could the Security Company do with the proceeds except to pay them back to the defendant, after deducting therefrom the expenses of this suit? It is manifest they could keep nothing but the cost, for any purpose whatever, and can the company make cost merety for the purpose of making the defendant pay it? This certainly would be a work of foil}*, and besides would be using the court for purposes of oppression and wrong. We think it cannot be done.

A suit on a bond of this character, must be instituted and prosecuted for the benefit of some person who has a property interest in the estate itself, which the Security Company cannot claim.

We think, therefore, that the evidence objected to was admissible, and there is no error in the judgment appealed from.

In this opinion the other judges concurred.