46 N.E.2d 683 | Ind. | 1943
This is an action by the appellants against the appellees to quiet title to certain real estate to which *254 the appellants claim title as residuary devisees under the last will and testament of Emma B. Johnson, deceased. Item VI of said will was as follows:
"I give, devise and bequeath to Mima Parker, my sister, if she survives me, all the rest of the residue and remainder of my estate, wherever situate, for her use, benefit, and enjoyment as long as she lives and with the power to use, sell, dispose of as she desires all property given to her in this Item of Will. I desire that she give to my friends the presents they have given to me and any of my silverware, dishes, bed clothing and other trinkets they may desire. Papa's coverlet I want to always remain with some one of our family. I also want you to send to Adolphus E. Johnson a copy of my will and the letter which I have left for him. Now, Mima, I am making this bequest for you to enjoy yourself, with your husband, and do not permit your generosity to give it away, except as I have indicated herein.
"If any of the property given to said Mima Parker is not disposed of by her during her lifetime, then I give, devise and bequeath that part thereof not disposed of by the said Mima Parker in her lifetime, one-fifth to the children of my sister, Martha Overleese, deceased; one-fifth to the children of my brother, Wesley Nation, deceased; one-fifth to the children of my brother, Lige Nation, deceased; one-fifth to the children of my sister, Mima Parker, and the remaining one-fifth to the following children and grandchildren of my deceased sister, Sarah Sefton, as follows: one-third to Clarence Sefton, one-third to Hubert Bradley and one-third to Harold Ruddell, Jessie Ruddell, Ralph Ruddell and Helen Spillman."
Acting pursuant to a plan to convey and dispose of the real estate to her husband under the terms of the will, Mima Parker and her husband conveyed the real estate in question to a trustee for the purpose of having the trustee immediately reconvey it to the husband, *255 which was done. Mima Parker received no property, money or valuable consideration for this conveyance. At the time the conveyance was made she had available for her use a balance of approximately $400.00 of personal assets of the estate of Emma B. Johnson, deceased.
On the day following the execution of these two deeds Mima Parker died intestate. Shortly thereafter the husband also died leaving as his only heirs the appellees, Mae Longstreet and Wesley Parker, his children by the said Mima Parker, which children were also named as residuary devisees with the appellants in Item VI of said will.
Both appellants and appellees agree that by Item VI of said will Mima Parker took a life estate in said real estate with a power of disposition. They disagree only on the limitation on the power of disposition. Both insist that the language of Item VI is so clear that it is unnecessary to resort to rules of construction to determine the intention of the testatrix; the appellants insisting that it is perfectly clear that the conveyance of the real estate to the husband was not within the power of disposition and the appellees insisting, just as earnestly, that said conveyance was clearly within such power.
Both parties agree that to define the limitations on the power of disposition we must discover the true intent of the testatrix; that in discovering this intent we must look to all of the provisions of the will; and that this intent, if clear, as gathered from the provisions of the will as a whole, must prevail over a contrary intent which might be indicated by isolated words or phrases.
The appellants contend that all of the provisions of Item VI of said will, when considered together, show a clear intention on the part of the testatrix to limit the *256 power of disposition to a disposition of the property for the use, benefit, enjoyment, support and maintenance of said beneficiary during her lifetime; that no conveyance was valid unless it was for the support or maintenance of Mima Parker.
None of the cases cited by appellants to support this contention presents exactly the same question as presented by the instant case. In Goudie et al. v. Johnston et al. (1887),
In Wiley et al. v. Gregory et al. (1893),
In Bowser, Adm. v. Mattler (1894),
In Brookover v. Branyan (1916),
Booker v. Deane et al. (1928),
We have found many cases from other states, containing somewhat similar provisions in wills, where conflicting results have been reached by the court. In no two cases, however, were the 1. provisions of the wills and the facts involved exactly the same, nor are the provisions of the will and the facts in any of such cases exactly the same as in the instant case. In the early case of Smith v. Bell (1832), 6 Pet. 68, 80, 8 L.Ed. 322, Chief Justice Marshall said: "It has been said truly . . ., `that cases on wills may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.'" In the instant case the words, "to use, sell, dispose of as she desires," if taken literally, would have given an absolute power of disposition. The power was not expressly limited to a sale or disposition for the support and maintenance of the devisee. There is no expressed limitation indicating that the proceeds of a sale or disposition of the property, if there were any proceeds, should be substituted as a part of the testator's estate in lieu of the property disposed of.
Nor do we find by an examination of all of the provisions of the will, an intention on the part of the *259 testator to so limit the power. The will does provide that 2. if any of the property is "not disposed of by her during her lifetime" it shall be divided between the children and grandchildren of the brothers and sisters of the testatrix. This would seem to indicate that the devisee should not be permitted by will to make a different disposition of the property than that indicated by the testatrix; that any remainder not disposed of by the life tenant during her lifetime should be divided after her death between the residuary devisees named by the testatrix.
We believe it would follow that the devisee could not by a deed make a testamentary disposition of the property contrary to that intended by the testatrix. On any such limited power we 3, 4. must impose the limitation of good faith by the life tenant and so prevent her from intentionally and fraudulently making any disposition of the property for the purpose of circumventing the expressed desires of the testatrix. The appellants insist that the conveyance here in question was a deliberate attempt on the part of the devisee, Mima Parker, to make a testamentary disposition of the property contrary to that provided by the will of the testatrix and was "for the avowed purpose of defeating the intent of Emma B. Johnson." The only fact which would tend to support such contention is the fact that the devisee died during the day following the conveyance of the property. This isolated fact stipulated by the parties was not sufficient to force the trial court to conclude, as a matter of law, that the conveyance was an attempt at a testamentary disposition of the property in violation of the limitation on the power. The burden was upon the appellants to produce sufficient evidence to support their contention. *260
Can we say from a consideration of the will as a whole that the conveyance to the husband without the devisee receiving therefor "any property, money or valuable consideration" was beyond 5. the limits of the power? One may, by will, grant a life tenant a valid power to make a gift of the property intervivos. Crawfordsville Trust Co. v. Elston Bank and TrustCompany (1940),
In some cases where the words "sell" and "dispose" have been used together with a conjunctive in describing a power it has been said that the word "dispose" was used in the sense of 6. "deliver" and, therefore, did not warrant a gift of the property. In other cases where the words "use" and "dispose" joined by a conjunctive were employed to describe a power, some courts have given the word only the narrow meaning of "destroyed by use" or "used up," and have, therefore, held that the power of disposition so described was limited to a disposition for the use, or for the support and maintenance of the life tenant. In the instant case, however, the three words defining the power are not joined by conjunctives and apparently signify an intention to give three distinct powers, the power to use, to sell or "to dispose of as she desires." "Dispose" is a broad and inclusive word. Webster's New International Dictionary says that "give" is a synonym of "dispose." When the word is modified by the phrase "as she desires" it would signify any manner of disposition during her life which she might choose, including a conveyance without consideration, a gift. We find no other provisions of the will which negative the idea that the testatrix intended that these words should have this meaning. *261
The words granting the power are followed by expressed directions to the devisee to make gifts to different persons of certain items of the personal property. The testatrix then 7. explained to the devisee "I am making this bequest for you to enjoy yourself with your husband," language which would imply a power broader than mere "support and maintenance." This explanation is followed by the admonition "do not permit your generosity to give it away, except as I have indicated herein." The testatrix would not have admonished the life tenant not to permit her generosity to give away the specific items which she had been directed to give away. These were precatory words, not binding upon the life tenant, but clearly indicating the belief of the testatrix that she had given Mima Parker the power to give away the remainder of the property.
The appellants insist that the residuary clause, which provided for the division of any part of the property not disposed of by the life tenant, shows an intention to limit the life 8. tenant to a disposition for her support and maintenance and therefore prevents the devisee from making a conveyance of the property other than for a valuable consideration. The mere fact that there was a reversionary clause, which provided for a disposition of any property which might remain at the time of the death of the life tenant, did not necessarily limit the power to a sale or to a disposition for support and maintenance. In reEstate of Cooksey (1927),
In the instant case the language used in the reversionary clause is significant. The testatrix said: "If *262 any of the property . . . is not disposed of by her . . . then I give . . . that part thereof not disposed of . . ." If we find from the language of the first paragraph of Item VI that the testatrix intended to give the life tenant the power to dispose of the property by a conveyance without a valuable consideration, the language of the reversionary clause does not show a purpose of the testatrix so inconsistent with such intention as to impose a further limitation on the power.
It is our opinion that the appellants failed to show that the disposition of the property made by Mima Parker was beyond the limitations of the power of disposition granted to her by the will of Emma B. Johnson.
The judgment is affirmed.
NOTE. — Reported in