Warren v. Ingram

Smith, J., delivered tbe opinion of the court. John I. Ingram died seised and possessed of tbe land in controversy, leaving a widow and several children. By bis will be bequeathed all of bis property to* bis widow; tbe effective-language thereof being as follows: “I hereby bequeath to my wife, Mary Jane Ingram, all my real estate lying in Tate,. Marshall, and De Soto counties, Mississippi, and also all my personal property, notes, and accounts, and any and all interest of which I may be possessed, to have and to bold during ber life, and to do witb tbe same as in ber judgment sbe may deem best.”' One of bis daughters married a man named Stutts, and died in July, 1906, without children. Tbe widow conveyed away by warranty deed tbe lands in controversy, and sbe died March 9, 1908, intestate. Tbe bill in this case was filed by tbe four surviving children of Mr. Ingram against tbe purchasers of tbe lands in controversy, and against Mr. Stutts, being based on tbe idea, so far as tbe purchasers were concerned, tbat the widow’s deed was unauthorized by tbe will and only conveyed ber life estate, which, of course, terminated by ber death. These purchasers demurred to tbe bill, and, tbe demurrer being overruled, appealed to tbis court. Tbe question we are called upon to answer is tbis: Tbe devise-being expressly limited to tbe life of tbe devisee, did tbe addition -of tbis expression, “and to do witb tbe same as in her judgment sbe may deem best,” invest ber witb power to, by [446] deed, convey an estate in fee simple in any of the lands whereof hex* deceased husband had died seised and possessed ? The authorities are uniform to the effect that a devise of land to one indefinitely, and to do with the same at his discretion, will invest him with the fee; but if the devise is for life only, and to do with at his discretion, the devisee is invested with a life estate only, with ■an added powei*. Under the terms of this will, therefore, the widow took only a life estate, with an addled power. What was this power ? The claim of appellees is that it was only the power to dispose of her life estate, and not of the fee. If •appellees ai*e correct in this, the addition of the power would be mere surplusage; for she had that power without its being ■•expressly conferred. There are several cases in our reports dealing with this •question; the only one, howevei*, directly in point being Andrews v. Brumfield, 32 Miss. 107. In Edwards v. Gibbs, 39 Miss. 166, there was an. express limitation over, and the court 'there said: “Whilst it is true that .the bequest to the widow of the property, To use and dispose of it in any way she might think proper, during her life,’ would, if it had been alone, have passed an absolute estate to the widow, yet this must be construed with i*efei*ence to the limitation, which immediately suc-ceeds it, to Jaipes It. West. And the effect of these words of 'limitation is to qualify the estate given by the previous words to the widow, and to give her the usufruct of the property during 'her life, with remainder to- West at her death. And the legal effect of the clause is to give him a vested estate in remaindei*.” Here there is no express limitation over, and under Edwards v. Gibbs it would seem that the widow was therefore invested with an estate in fee. This, however, is not the law, and counsel do not contend that it is. That part of the opinion wherein the -court said, “"Whilst it is true that the bequest to the widow of the property, To use and dispose of it in any way she might think proper, during her life,’ would, if it had been alone, have passed [447] .an absolute estate to the widow,” was not called for by the decision of the question involved; the same being whether James B. West took a vested estate in remainder, or only a contingent interest, to become vested on the widow dying without having •disposed of the estate in her lifetime.” In Andrews v. Brumfield, supra, the court said: “In the first and second clauses of the will, the property bequeathed to Mrs. Andrews is limited to her, expressly, for the term of her natural life. The language is too plain to admit of the least doubt as to the intention. Hence, if the will contained no other provision, it could not be questioned that only a life estate was given to her. But by the seventh clause, in which the testator declares it to be his will that all the property given to Mrs. Andrews by the first and second clauses ‘shall be delivered into her posses■sion as soon after [his] death as possible, that she may fiave full control of the same, and be empowered to dispose of the same as •she may think proper,’ it is insisted that this result has been •changed. We think that this language admits of but one construction. It appears, manifestly, to have been the testator’s intention to confer an unrestricted power of disposition. Taking all of the claims together, as disclosing the testator’s intention, they show, first, that the property was given for life, and, ■secondly, that the legatee should possess the power to sell, give, •or transfer to whomsoever she might elect.” , This decision is in accord with the weight of authority, and seems to us conclusive of the case at bar. There can be no real difference between a power to dispose of property at discretion and a power to do with it at discretion. If there is any difference, the latter power is the broader one. Appellees rely upon Brant v. Virginia Coal Company, 93 U. S. 326, 23 L. Ed. 927. That case held, following Smith v. Bell, 6 Pet. 68, 8 L. Ed. 332, that where “a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make, unless [448] there are other words clearly indicating that a larger power was-, intended.” Both of these cases uphold appellees’ contention,, but are squarely in conflict with Andrews v. Brumfield and with the decided weight of authority. As was said by the court of Massachusetts in Gifford v. Choate, 100 Mass. 346, the authority of Smith v. Bell “is somewhat impaired by the circumstance that no< counsel were heard on behalf of the party against whom it was- anade, and the attention of the court does-arot seem to have been drawn to the authorities in favor of the-opposite conclusion.” The supreme court of the United States seems to have receded from the doctrine announced in these-cases, and to have fallen in line with tire current of authority. In Giles v. Little, 104 U. S. 299, 26 L. Ed. 746, the will under consideration was as folloAvs: “To my beloved wife-, Edith J. Dawson, I give and bequeath all my estate, real and per-sooral, of which I may die seised,, the same to remain and be-hers, with full power, right and authority to dispose of the same as to her shall seem meet and proper, so long as she shall remain my widow, * * * upon the express condition that, if she shall marry again, then it is my will that all the estate herein bequeathed or whatever may remain, shall go to my surviving children, share and share alike.” The court, following-Brant v. Virginia, Coal Company and Smith v. Bell, held that the power of disposition conferred on the wife was only such-disposition as a tenant for life could make. This same will was afterwards before the supreme court of Nebraska in Little v. Giles, 25 Neb. 313, 41 N. W. 186, and that court held, construing the will in connection with a statute of the state, that the will enabled the testator’s widow, prior to her remarriage,, to convey an estate in fee simple in lands of which her husband died seised and possessed. In Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747, this will was again under consideration by the supreme court of the United States, and the holding of the supreme court of Nebraska was ap [449] proved, and its former decision in Giles v. Little, 104. U. S. 291, 26 L. Ed. 746, was overruled. Tbe court, then reasoning tbe matter out for itself without reference to tbe Nebraska statute, reached tbe conclusion that, under tbe will, tbe widow bad power to convey an estate in fee simple to tbe lands of which her husband died seised and possessed, and stated that “the general current of authority in other courts is in favor of our present conclusion.” We are clearly of tbe opinion that, under tbe will in question, tbe widow of tbe testator bad power to convey an estate in fee simple to tbe land in controversy. Tbe decree of the court below is reversed, tbe demurrer sustained, and tbe bill dismissed. Reversed.