McRoberts v. Barnard

32 Ohio C.C. Dec. 697, 18 Ohio C.C. (n.s.) 225, 1908 Ohio Misc. LEXIS 346

Opinion

HENRY, J.

The only feature of this case which we deem it necessary to discuss here is the true interpretation of the second item of Pitt McRoberts will, as follows:

“I give and devise all the residue of my estate to Abby my beloved wife, to be to her and to her disposal during her life. ’ ’

The testator’s widow, Abby, undertook to dispose, by will, of the real estate thus devised to her. The validity of this disposition by her obviously can be rested either upon the view that she was invested with the fee therein by the term of her husband’s will, or upon the view that her husband’s will invested her with the power to make testamentary disposition of the same. The first of these views seems to us to be supported by the case of Davis v. Corwine, 25 Ohio St. 668, and Lesley v. Smith, 7 Circ. Dec. 264 (13 R. 189).

The second view is supported by the Massachusetts ease of Burbank v. Sweeney, 161 Mass. 490 [37 N. E. 669], a well considered ease which we approve.

Judgment "below affirmed.

Winch and Marvin, JJ., concur.