In re Will of Burbank

28 N.W. 648, 69 Iowa 378

• Court: Supreme Court of Iowa
• Decided: June 23, 1886
• Status: Published

Opinion

Reed, J.

The question in the case is whether the widow of the testator took a life-estate, or an estate in fee, under the bequest to her. If she took an estate in fee, the bequests due to Ansel and Dana Burbank, and the three religious societies named in the will, are repugnant to the estate conferred upon her, and are consequently void. Rona v. Meier, 47 Iowa, 607; Alden v. Johnson, 63 Id., 124; Jackson v. Bull, 10 Johns., 18; Same v. Delaney, 13 Id., 535; Same v. Robins, 15 Id., 168; Same v. Same, 3 6 Id., 537. The language, “I give to my wife, Silenda Burbank, * * * the entire control and use of my property of every nature, during her life,” standing alone, would indicate an intention by the testator to bestow but a life-estate on the legatee. By the subsequent words, however, a power of disposal is conferred on the devisee, and this provision is of the highest importance in determining the effect of the bequest. If it could be- said that this power was annexed to the life-estate created by the preceding words of the bequest, and that it empowered the devisee simply to dispose of that estate, or even of the reversion, she would not take an estate in fee under the bequest. Jackson v. Robins, 16 Johns., 587; Thomlinson v. Dighton, 1 Salk., 239; Crossling v. Crossling, 2 Cox, Eq., 396; Reid v. Shergold, 10 Ves., 370.

On the other hand, if the power was conferred upon the legatee to make absolute disposition of the property, it carried with it an estate in fee. Rona v. Meier, supra. See, also, the cases cited above from 10, 13, 15, and 16 Johns.; also Ide v. Ide, 5 Mass., 499; Hale v. Marsh, 100 Id., 468. We are of the opinion that the devisee was empowered by the bequest to dispose of the property absolutely. The gift is of the control and use of the property 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.” The power of disposal conferred by this language clearly relates to the property of which, by the preceding words of the bequest, the control and use are given to the devisee. The language cannot, under any of the settled rules of construction, be made to relate to anything else. The power conferred, then, upon the legatee, was to dispose of the property as she might think best, and as fully as the testator might do if he were living. She was empowered to sell it, to donate it by way of gift during her life, or by bequest at her death. The grant of so absolute a power and dominion over the property necessarily carried with it the absolute ownership of it.

We think the judgment of the circuit court is clearly right.

Affirmed.