Stowell v. Hastings, 59 Vt. 494

Stowell v. Hastings

59 Vt. 494 | Vt. | 1887

The opinion of the court was delivered by

Taft, J.

The important question in this case is, whether Mrs. Stowell took an absolute estate in the property which passed to her under the residuary clause in her husband’s will. It reads as follows :

“ I give to my beloved wife, Hepsibah H. Stowell, the residue and remainder of all my estate, both real and personal, for her benefit and support, to use and dispose of as she may think proper. If any of the estate should be left in my wife’s possession at her death, it is my will that the same should be equally divided between eight of my brothers and sisters,” etc.

The decree of the Probate Court in 1872 settled no question involved in this case.

The testator gives his wife the residue of his estate for her benefit and support, with an absolute power of disposition ; no conditions annexed to the gift, no words limiting the use of the property ; and giving the words used their usual signification, she is put in the place of the testator as to the title and all rights to the property.

If an estate be given to a person generally or indefinitely, with an absolute power of disposition, it carries a fee and a remainder over is void for repugnancy. 1 Eq. Cases Abr. 176; 4 Kent Comm. (2d ed.) 535; Smith v. Van Ostrand, *49764 N. Y. 278; Campbell v. Beaumont, 91 N. Y. 464; Seibert v. Wise, 70 Pa. St. 147; Ramsdell v. Ramsdell, 21 Me. 288.

“ In general, however, a limitation over after a fee is held to be repugnant to the estate first granted, and is itself rejected.” 2 Jar. on Wills, 44, n. 1. “ It is a settled rule of American as well as English law.” 2 Red. Law of Wills, 278.

Where the jus disponendi is conditional, as in those cases where the property is given for support only, with power over the principal for that purpose, or the estate given the first taker is one for life only, a different rule may prevail and the gift in remainder be valid, for, in such cases, no absolute estate is given the first taker. In determining what estate is given the first taker, the whole will should be considered, and all the clauses construed together. Even in those cases where an absolute estate is in terms given, if subsequent passages unequivocally show that the testator meant the legatee to take a life interest only, the prior gift is restricted accordingly. Jarman on Wills, chap. 15. Such are the cases in this State of Richardson v. Paige, 54 Vt. 373; McCloskey v. Gleason, 56 Vt. 264; and such construction was given the will in Smith v. Bell, 6 Pet. 68.

If we could construe the will in question as giving the residue to Mrs. Stowell for her support only, which is the construction the appellants insist should be given it, their claim might be upheld. It was given for her support, but not for that alone. It was for her benefit, and using the synonymes of the word, it was for her advantage, her profit, her gain, her account, her interest. The word benefit and its synonymes mean more than simply support; they mean any purpose, to which the absolute owner of property can devote it; and given for that purpose, they mean that Mrs. Stowell had unlimited power to dispose of it at her pleasure. If we held that Mrs. Stowell had no right to dispose of the estate, save only for het support, we think it would be clear violation of the intention of her husband, and a substitution of the will of the court for that of the testator. A will should be construed as a whole, *498and. effect given to eacb and every part of it if possible; but it must be conceded that tire two intents of the testator, as expressed in repugnant provisions, cannot botb be carried out. There is a gift to the first taker and another in remainder. The clauses should be construed together, and effect given to both, if consistent with the rules of law. Where it is clear, considering the language used, that the testator intended a life estate in the first taker, or a use of the bequest for support only, or any other limited purpose, there is no difficulty in . carrying out the full intent of the testator by giving force, after the first estate is ended, to the clause creating the estate in remainder; but where it is clear, judging from both clauses, that by the gift in remainder the testator did not intend to limit the use of the property in the hands of the first taker in any respect, and in the bequest to the first taker gives an absolute estate, using words which admit of no other construction, the rule as to the repugnancy must apply. We do not think that Mr. Stowell intended by the gift in remainder, to limit the use which his wife might make of the residue. We think he intended she should take his own place in respect to it, and use it in an unlimited manner; and his intent in that respect should be carried out. We see no difference in the meaning of the words if transposed so as to read “ to use and dispose of as she may think proper for her benefit and support.” This holding renders it unnecessary to pass upon any other question.

Judgment affirmed. Cause ordered certified to the Probate Court.