Anderson v. Ettridge

Grant, J. (after stating the facts). We are of the opinion that the estate devised was for life only. The [466] same sentence, the first clause of which, standing alone, would convey the fee, expressly limits the devise to the use of the land as a homestead for life, or, at the option of the devisee, to rent it for her benefit during her life. This life estate was also charged with the payment to the testator’s sister of one-half the rental value. The testator evidently did not desire to limit his wife to a life estate, should she prefer to take in lieu thereof one-half the value of the premises, and therefore attached to the bequest a power of sale optional with her to exercise. Attached to this power of sale was also the duty to divide the proceeds with his sister. The widow chose not to avail herself of this option, but to retain the life estate. The power of sale is not controlling, but is only one fact to be considered in interpreting a will. The will makes no provision for the sister beyond the life of the wife. The sister, therefore, has no interest in the land except as heir. We think this case is controlled by Jones v. Deming, 91 Mich. 481 (51 N. W. 1119). In that case the power to sell was conditioned upon the necessity of the wife. In this case the power is conditioned upon the voluntary act of the wife, and until that voluntary act had been performed she took only a life estate. The heirs of the testator are therefore entitled to the land. The decree is reversed, and one entered in this court in accordance with the above opinion. We think no costs should be allowed. The other Justices concurred.