Podaril v. Clark

McClain, J. [265] 1 w estate: power of disposal. [264] 'The will under which plaintiff claims was in the following language; “Kno all men by these [265] presance that I, Wenzel Podaril, convey unto my wife, Mary Anna Podaril, all- my right title and intirest in all of my Property, both Peal and ^ jr ^ 3 Personal, for her Natureal Lifetime. And I further give' her the privelege to sell or convey the same to whomsoever she may see or think best to do during her lifetime. This is my last Will and Testament. All of the above stated property is in the Oounty of Washington, and state of Iowa. This September 24th, 1894.”. Counsel for plaintiff contends for a construction of this will by which the second clause, authorizing a disposal by the widow during her lifetime, shall be given the effect of enlarging the life estate given by the first clause to a fee, under the rule recognized by this court in the case of Burbank's Will, 69 Iowa, 378. It is true there are many cases in this state (tho last being Law v. Douglass, 107 Iowa, 606, where the authorities are fully collected) in which it has been held th'at, although the express language of the granting clause • in the will, taken alone, indicates the devise of a life estate, yet, if the other language, with reference to the power of disposal which the devisee may exercise, indicates an intention that the devisee is to have in his own right, and, as an incident to the estate granted to him, the full power of control and disposition of the property, then the- estate granted is in reality a fee. But an examination of these cases will show that the power of disposal which is given the effect of converting the life estate into a fee is descriptive of the nature of the estate itself, while in the will before us the grant of the life estate and the grant of a power of disposal are in wholly independent clauses. The first clause gives a life estate. The second specifically grants a power not included in the grant of a life estate. . This, we -think, renders the reason of the rule announced in Law v. Douglass, supra, and the cases on which it is based, inapplicable here. For instance, in the case of Burbank's Will, supra, [266] the language construed as creating a fee was: “I give to my wife, Silenda Burbank, * * * the entire control and use of my property of every nature during her life, * * * to be by her controlled, used, and disposed of as she may think best, as fully as I could do the same, were I living. ” All this language together described the nature of the estate devised, and it was held to describe a fee, while in the case before us the testator devises a life estate, and then continues, “I further give her the privilege to sell,” etc. What more apt words could be used to indicate the intent to devise a power not involved in the life estate given, but added thereto? The case before us is plainly distinguishable, also, from that of Rona v. Meier, 47 Iowa, 607, and like cases where it is held’that a clause creating in itself an estate in fee is not limited by a subsequent precatory clause as to the disposition to be made of the property remaining undisposed of at the devisee’s death; for in the will we are considering the first clause expressly grants a life.estate, not an estate in fee. We cannot agree with the view further urged by plaintiff’s counsel, that there are peculiar circumstances requiring that the language of this will be construed as creating a fee, although without such circumstances the language itself would not be so construed. There are no peculiar facts here, as there were in the cited case of Kaufman v. Breckinridge, 117 Ill. 305 (7 N. E. Rep. 666), to control the interpretation. But before going further, the theory of defendants’ counsel should be considered, which is that the second clause of the will, providing that the widow shall have “the privilege to sell or convey the same to whomsoever she may see or think best to do during her lifetime,” relates to the life estate given in the first clause, and not to the property. In support of this contention, counsel cites Brant v. Iron Co., 93 U. S. 326 (23 L. Ed. 927); Henderson v. Blackburn, 104 Ill. 227 (44 Am. Rep. 780); Boyd v. [267] Strahan, 36 Ill. 355; Bradly v. Westcott, 13 Ves. 445. And he relies on these cases as establishing the proposition that where a general power of disposal is given, following the grant of a life estate, such power is to be deemed coextensive only with the estate granted, and therefore as amounting only to a grant of power to dispose of the life estate itself. The comparison which counsel makes between the provisions of this will and those of the wills construed in the cases cited shows on its face that the will before us is clearly distinguishable from those construed. In those wills the power of disposal is given as incidental merely to the grant of the life estate, and may therefore well be limited to the estate given. The rule contended for is laid down in Welsch v. Bank, 94 Ill. 191, in the following language: “In all cases where by the terms of the will there has been an express limitation of the estate to the first taker for life, and a limitation over, any general expressions * * * apparently giving the tenant for life an unlimited power over the estate, but which do not in express terms do so, must be regarded as referring to a life interest only, and therefore as limited by such interest.” It might be difficult to draw an accurate line between these cases and those represented by Law v. Douglass, supra, in our own state, in which the incorporation of an unlimited power of disposal as a characteristic of the estate granted converts what would otherwise'be a life estate into a fee; but we shall not attempt now to draw this line, nor to determine whether, in view of our previous decisions, the cases relied on by defendants’ counsel can be fallowed. As applicable to the present will, the difficulty with the rule contended for by plaintiff’s counsel is that it nullifies the first of the two independent clauses, and gives effect only to the second, while the theory of defendants’ counsel would nullify the second clause, and give effect only to the first; for, if the first clause grants.a.life estate, then the [268] power of disposition of such life estate follows as a matter of course, without further expression, and the language of the second clause is wholly superfluous. It may not be in accordance with the actual facts in particular cases to say that the testator must have known and understood the legal effect of thelanguage used, but courts, in construing wills, cannot proceed on any other assumption than that each clause was intended to have some effect; and they will give operation to each provision, if practicable, consistently with any reasonable interpretation • of the language used in other provisions. It seems to us that the language of this will, consisting, as it does, of two independent provisions, one granting a life estate, and the other granting-a limited power of disposal (that is, a power to be exercised only by disposition during life, and not by will), brings it within the rule recognized in the cases of Spaan v. Anderson, 115 Iowa, 121, and In re Proctor's Estate, 95 Iowa, 172, by which both clauses may be given effect, to wit, that the devisor may create a life estate, and in addition give to the same person an independent power to dispose of the property during life, either for a specified purpose, or without limitation as to the purpose. This rule is recognized, also in Law v. Douglass, supra, in the following language: “The distinction between the attempt to devise the estate remaining after the death of the devisee, to whom the absolute fee has been given, and the remainder after the exercise of power of disposition thereof as a separate interest, where a life estate only is given, should be observed. To the gift of a life estate may be annexed the right to sell the remainder for defined purposes as a separate gift, and a devise of the part undisposed of is held good.” 'And in Spaan v. Anderson, supra, we have said that “while this court never expressly held that absolute power of disposal, without limitation as to the purpose to which the property may thus be appropriated, does not enlarge the express grant of a life estate so [269] as to convert it into a fee simple, yet there are no cases inconsistent with this conclusion, and the authorities in other states seem to recognize the principle that to the devise of a life estate this unlimited power of disposal may be added without affecting the nature of the estate devised.” In Van Horne v. Campbell, 100 N. Y. 287 (3 N. E. Rep. 316, 771, 53 Am. Rep. 166), the court uses this language: “8uch of the cases as sustain a limitation, over-after the life estate, accompanied with a limited power of disposition in the life tenant, proceed upon a distinction perfectly.well settled, and fall within that common form of limitation, viz., a limitation for life, with power of appointment in the life tenant, and remainder over on default of its exercise. The estate created by the exercise of the power does not take effect out of the interest of the life tenant, but out of the estate of the grantor, of the power not embraced in the life interest. ” We are not now required to hold that an unlimited power of disposal may be added to a life estate without converting it into a fee. The power given in the will we are now considering is limited to a disposition taking effect during the widow’s life, and does not extend to disposition by will. Fidler v. Lash, 125 Pa. 87 (17 Atl. Rep. 240); McCauley's Appeal, 93 Pa. 102; Harmon v. Smith (C. C.) 38 Fed. Rep. 482. It might, perhaps,-be urged in opposition to the' application of the rule of the cases hereinbefore cited with reference to giving a power 'of disposal in addition to a life estate to the will now before us that in most of them, if not all, there was a devise of the remainder after the life estate, while here the will is silent as to the disposition of such remainder. But we cannot see that this is a controlling consideration. Where the remainder is expressly devised, the devisee thereof takes subject to the contingency that the remainder may be partially or entirely consumed by the exercise on the part of the life tenant of the additional power of disposal, but under this will the [270] remainder, being undisposed of, passes at once to the heirs at law, subject to the same condition, to wit, that the inheritance may be destroyed by the absolute power of disposal given to the widow for her life. It may be, therefore, that these defendants will never receive any benefit from the inheritance of the remainder left after the devise of the life estate, by reason of the exercise by the widow of the power of disposition of the property; but that fact does not prevent their having a present interest in the property, and the right to the enjoyment thereof after the life estate shall be extinguished, provided the property, or any portion thereof, remains undisposed of when the widow’s power of disposal is terminated by her death. We have no occasion n'ow to consider what may be the rights of defendants in the proceeds of the property, should the widow exercise her power of disposal by selling the fee or exchanging it for other property. The conclusion we reach is not in harmony with that contended for either by counsel for plaintiff or counsel for defendants, but it necessitates a reversal of the decree of the lower court. The decree should have been that plaintiff is not the owner of the premises in fee, and her petition should have been dismissed. — Reversed.