Ringe v. Kellner

Mr. Justice Green delivered the opinion of the court, Febuary 20th 1882. In this case the operative words of the actual devise ai’e as follows : “All my real and personal estate after the decease of my wife and after debts and funeral expenses are paid, shal be equally divided among my four children or their children in case they themselves are dead.” It is undoubted, and it is not at all questioned, that these words alone, and standing by themselves, passed the fee simple of all the testator’s real estate to the devisees named. But it is argued that certain additional words next occurring in the will, reduce this estate, so far as the daughters of the testator are concerned, to a mere use, and that they must therefore be held to be vested only with an estate to their sole and separate use, without power of alienation. The words relied upon for this construction are the following: “ It is also my will that my daughters shal have and hold their share of inheritance in their own name and shall not let it be controuled by their respective husbands, and the husbands shall not inherit it unless there is no child living.” It will be observed that no use estate is given in -words and no trust of any kind is created. Indeed, it is directed expressly that the property shall be held by the daughters in their own names, which excludes the idea of a trust. The direction that the husbands shall not control the estate, is simply an expression of the legal state of the title under the Act of 1848, and the result would be precisely the same if these words were not in the will. It would be strain [464] ing tbe meaning of the iast words of the clause very greatly indeed, to hold that they created the technical estate known as an estate for the sole and separate use of a married woman, with its peculiar and undesirable incidents. The words are “ and the husband shall not inherit it unless there is no child living.” Strictly speaking, these words impose no limitation upon the husband’s interest as it would be cither at common law, or under the Act of 1848. They only deny inheritance to the husband, except in the event of a failure of issue. They do not interfere with his tenancy by the curtesy in the event of issue, and they leave him free to take all that .he could possibly take if no children are born and survive. We are clear, therefore, that the words of the clause of the will above quoted, and upon which alone the contention of the defendant is based, can not operate to create an estate for the use of the daughters only, but were we in doubt on that subject, the next succeeding clause wonld certainly remove the doubt. It is in these words : “ I want the estate to be settled up within one year after the last of us is dead, but will leave to my heirs to determine whether they will sell the real estate within that time or settle it among themselves another way, as for instance, one may take one property, and another one, another and pay over the difference.” Here is a clear implication, indeed an expression, of a power to sell, or if the devisees prefer, to make partition of the property among themselves and provide for owelty. Either of these powers is entirely inconsistent with the estate for sole and separate use claimed by the defendant. The very object of the defence in this case is to obtain a judicial declaration that there is no power of alienation in the daughters under this will, and yet such a construction would clearly contravene both the implied and the expressed intent of the testator that the daughters should possess that power. The case of Jamison v. Brady, 6 S. & R. 465, is not applicable, as there the gift was expressly to Martha Brady for her own use, and the decision was based upon those words in the will. In Wright v. Brown, 8 Wright 224, also, the devise was for the sole and separate use of the testator’s nieces, and there was no question as to the character of the estate thus created. The controversy was on the power of alienation in view of the Act of 1848, and it was held that the Act did not affect this class of estates. We are of opinion that the construction of the will of Daniel Kellner by the learned court below was right, and therefore The judgment is affirmed.