140 S.E. 487 | W. Va. | 1927
This is a suit over the right to personal property between the respective administrators of E. H. Elliott and his wife Sarah E. E. H. Elliott died testate; his wife intestate. They had no children. Neither the bill nor the answer ask for a construction of his will; but a determination of this litigation requires that it be construed. After directing payment of his debts the will proceeds as follows:
*509"SECOND. I will and bequeath to my beloved wife, Sarah E. Elliott, all the residue of my estate, real, personal and mixed, for and during her natural life, and at her death all that remains thereof is to go to my legal living heirs except that Bayard T. Price, my nephew, to whom I hereby bequeath the sum of One Dollar as and for his full share of my estate, and he shall share no further in the distribution thereof, except further that after the death of my wife, that in the distribution of the remainder of my property or estate left by her that the portion thereof that would legally go to Sarah Frances Elliott, the only heir of my brother, P. M. Elliott, deceased, shall not be paid to her until such time as she shall arrive at the age of 21 years.
"THIRD. I hereby appoint and constitute my said wife Sarah E. Elliott the Executrix of this my last will and testament and direct that she qualify as such without security of any kind, and I further direct that there be no appraisement of my estate or any public sale thereof, and having the utmost confidence in the judgment of my said wife I desire that she shall not be required to make any settlement, as it is my desire that my said wife is to fully enjoy a sufficiency of the property hereby willed to her so long as she may live to make her contented and happy."
The appellant contends that Mrs. Elliott was devised an absolute estate, relying on Blake v. Blake,
Both citations concur that where property is willed to a beneficiary for life, but he is given unlimited power of disposal, his estate is absolute. If not expressly stated, the power of disposal must be clearly implied. "Where a life estate is expressly given to convert it into a fee, there must be clear power of disposition given to the devisee for life".Stout v. Clifford,
The word "enjoy" has no primary significance of sale or disposal. Its accepted definition is "to have, possess, and use with satisfaction, to occupy or have the benefit of". That definition conveys the idea of retention rather than disposition. So long as the devisee could pleasantly use the bequest as devised, no implied right of disposal would arise. Before the right to enjoy would imply the right to sell, the bequest would have to be unsuited to enjoyment in the form devised. There is nothing in the will to indicate that the property could not be enjoyed by the wife in the form in which it was devised. If no implied right to consume or dispose of the property is inferable from the words "fully enjoy", then the obvious purpose of the testator was that his wife should enjoy the bequest not as an owner, but as a life tenant — that is, by use and occupation. "The words 'use and *511
occupation' properly state the nature of the enjoyment of property by a tenant for life." Faxon v. Faxon,
A like construction was given the phrase "to be enjoyed by her", in Englerth et al. v. Kellar,
Our conclusion is strengthened by the apparent confidence of the testator that a remainder would exist at the death of his wife, and by the fact that in the very clause relied upon to enlarge the life estate, the testator emphasizes, by repetition, the limitation to her "so long as she may live". Appellant asserts that the wife could have disposed of all of the property, and "no one could have questioned her acts". He overlooks the right of remaindermen to prevent waste by a life tenant.
It seems that a considerable sum of money belonging to Sarah E. Elliott was intermingled with funds of her husband *512
in his lifetime. Appellant contends that the estate of the wife should now be given credit for that money in the settlement with the administrator of the husband. The will disposed of all the testator's property. It recognized no claim of the wife thereto, in her own right. It made provision for her which she accepted. The assertion of her claim for the money entrusted to him would have been inconsistent with the full effect and operation of the will. She acceded to the dominion over the property exercised by the testator. She will therefore be held to have elected to take under the will. Such election extinguished any claim against his estate for her money.Rau v. Krepps
Appellant also contends that the respective heirs of the decedents should have been made parties to this suit. The bill seeks a disclosure and an accounting by appellant of the funds which came into his hands as the representative of Sarah E. Elliott. The real estate is not involved. The construction of the will is a mere incident to, and not an object of, the litigation. The presence of the heirs is therefore not essential. "When a bill for discovery is brought in equity (i. e. by a personal representative), the distributees are neither necessary nor proper parties." 6 Stand. Ency. of Pro. 520.Smith v. Smith's Adm'r.,
He further says that because the wife was excused from making a settlement, no accounting should be exacted of him, as her representative. The absolution of the wife in this respect was personal to her, and under no conception could it relieve her representative from a reckoning of what came into his hands.
Error is cross-assigned by appellee because the court allowed appellant a commission on the property recovered from him in this suit. That property consisted of cash in bank, notes, stock and securities, which stood in the name of Sarah E. Elliott at the time of her death. The right of her administrator, under the circumstances, to assume charge of this *513 property is clear. Having lawfully reduced it to possession, he is entitled to compensation.
The decree of the lower court is affirmed.
Affirmed.