In re Will of Barrett

Deemer, J. The provision of the will we are asked to construe reads as follows: “I give and bequeath to my beloved wife, Eleanor S. Barrett, all of my property, real [571] and personal, of every description, to use, enjoy, and manage as she, in her judgment, sees fit.” Does this devise a fee or life estate? The trial court held that it created but a life estate. If that which follows the word “description,” in the will, were eliminated, there would be no doubt that an absolute estate was devised to the widow; for the words “give and bequeath” are the equivalent of “devise.” In re Burbank’s Will, 69 Iowa, 378. Is the estate limited to a life interest by reason of the use of the words, “to use and enjoy and manage as she, in her judgment, sees fit?” Conditions or limitations imposed on an absolute devise are strictly construed, and will not be allowed to defeat the estate unless it clearly appears that the testator intended to devise but a qualified estate. Schou,ler Wills, teecition 475; Allen v. White, 97 Mass. 504. In Bulfer v. Willigrod, 71 Iowa, 620, the will read as follows: “I give and bequeath to my beloved wife all my property, both real and personal and mixed, and of every kind and manner, and nature, to use, to her own use and benefit, as she shall deem best for herself and our beloved daughter, Anna M. Kline.” Judge Reed, speaking for the court, said: “The present bequest is a devise of all of the property, coupled Avith the poAver to make absolute disposition of it. Under the settled rule, it must be regarded as an absolute bequest to her.” If the Avords, “use to her own use and benefit,” give poAver of absolute disposition, surely the Avords, “to use, enjoy it, and manage as long as she, in her judgment, sees fit,” do no less. A devise of property to one, to use and enjoy, is not confined to personal use, unless the context clearly calls for the more limited construction. Such Avords, as a rule, carry the beneficial estate to the devisee. Hance v. West, 32 N. J. Law, 233; Stone v. North, 41 Maine, 265. There is nothing to indicate that the testator intended to devise but a life estate to his Avife. He does not undertake to dispose of the. remainder, and there is every reason to think that he supposed he was disposing of the Avhole of his property to his wife. [572] Technical construction corresponds, then, with the testator’s intent, and both give the widow an estate in fee. The case is clearly ruled by Bulfer v. Willigrod, supra. There should be a decree finding that Eleanor S. Barrett took an estate in fee, and the cause is remanded for that purpose. — -Reversed.