CHAPTER XXXI

POWERS IN LIFE TENANTS TO DISPOSE OF THE FEE

BRANT v. VIRGINIA COAL & IRON CO.

(Supreme Court of United States, 1876. 93 U. S. 326, 23 L. Ed. 927.) Appeal from the Circuit Court of the United States for the District of West Virginia.

In April, 1831, Robert Sinclair, of Hampshire County, Va., died, leaving a widow and eight surviving children. He was, at the time of his death, possessed of some personal property, and the real property in controversy, consisting of one hundred and ten acres. By his last will and testament he made the following devise: "I give and bequeath to my beloved wife, Nancy Sinclair, all my estate, both real and personal; that is to say, all my lands, cattle, horses, sheep, farming utensils, household and kitchen furniture, with every thing that I possess, to have and to hold during her life, and to do with as she sees proper before her death." The will was duly probated in the proper county.

In July, 1839, the widow, for the consideration of $1,100, executed a deed to the Union Potomac Company, a corporation created under the laws of Virginia, of the real property thus devised to her, describing it as the tract or parcel on which she then resided, and the same which was conveyed to her "by the last will and testament of her late husband." As security for the payment of the consideration, she took at the time from the company its bond and a mortgage upon the . property. The mortgage described the property as the tract of land which had on that day been conveyed by her to the Union Potomac Company.

In 1854 this bond and mortgage were assigned to the complainant. and Hector Sinclair, the latter a son of the widow, in consideration of $100 cash, and the yearly payment of the like sum during her life. Previous to this time, Brant and Hector Sinclair had purchased the interest of all the other heirs, except Jane Sinclair, who was at the time, and still is, an idiot, or an insane person; and such purchase is recited in the assignment, as is also the previous conveyance of a lifeinterest to the company.

In July, 1857, these parties instituted suit for the foreclosure of the mortgage and sale of the property. The bill described the property as a tract of valuable coal land which the company had purchased of the widow, and prayed for the sale of the estate purchased. Copies of the deed of the widow and of the mortgage of the company were

annexed to the bill. In due course of proceedings a decree was obtained directing a sale, by commissioners appointed for that purpose, of the property, describing it as "the lands in the bill and proceedings mentioned," if certain payments were not made within a designated period. The payments not being made, the commissioners, in December, 1858, sold the mortgaged property to one Patrick Hammill, who thus succeeded to all the rights of the Union Potomac Company. The defendant corporation, the Virginia Coal and Iron Company, derive their title and interest in the premises by sundry mesne conveyances from Hammill, and in 1867 went into their possession. Since then it has cut down a large amount of valuable timber, and has engaged in mining and extracting coal from the land, and disposing of it.

Brant, having acquired the interest of Hector Sinclair, brought the present suit to restrain the company from mining and extracting coal from the land, and to compel an accounting for the timber cut and the coal taken and converted to its use.

The court below dismissed the bill, whereupon Brant brought the case here.

FIELD, J. The disposition of the case depends upon the construction given to the devise of Robert Sinclair to his widow, and the operation of the foreclosure proceedings as an estoppel upon the complainant from asserting title to the property.

The complainant contends that the widow took a life-estate in the property, with only such power as a life-tenant can have, and that her conveyance, therefore, carried no greater interest to the Union Potomac Company. The defendant corporation, on the other hand, insists that, with the life-estate, the widow took full power to dispose of the property absolutely, and that her conveyance accordingly passed the fee.

We are of opinion that the position taken by the complainant is the correct one. The interest conveyed by the devise to the widow was only a life-estate. The language used admits of no other conclusion; and the accompanying words, "to do with as she sees proper before her death," only conferred power to deal with the property in such manner as she might choose, consistently with that estate, and, perhaps, without liability for waste committed. These words, used in connection with a conveyance of a leasehold estate, would never be understood as conferring a power to sell the property so as to pass a greater estate. Whatever power of disposal the words confer is limited by the estate with which they are connected.

In the case of Bradley v. Westcott, reported in the 13th of Vesey, the testator gave all his personal estate to his wife for her sole use for life, to be at her full, free, and absolute disposal and disposition during life; and the court held, that, as the testator had given in express terms an interest for life, the ambiguous words afterwards

thrown in could not extend that interest to the absolute property. "I must construe," said the Master of the Rolls, "the subsequent words with reference to the express interest for life previously given, that she is to have as full, free, and absolute disposition as a tenant for life can have."

In Smith v. Bell, reported in 6 Pet. 68, 8 L. Ed. 322, the testator gave all his personal estate, after certain payments, to his wife, "to and for her own use and disposal absolutely," with a provision that the remainder after her decease should go to his son. The court held that the latter clause qualified the former, and showed that the wife only took a life-estate. In construing the language of the devise, Chief Justice Marshall, after observing that the operation of the words "to and for her own use and benefit and disposal absolutely," annexed to the bequest, standing alone, could not be questioned, said, "But suppose the testator had added the words 'during her natural life,' these words would have restrained those which preceded them, and have limited the use and benefit, and the absolute disposal given by the prior words, to the use and benefit and to a disposal for the life of the wife. The words, then, are susceptible of such limitation. It may be imposed on them by other words. Even the words 'disposal absolutely' may have their character qualified by restraining words connected with and explaining them, to mean such absolute disposal as a tenant for life may make."

The Chief Justice then proceeded to show that other equivalent words might be used, equally manifesting the intent of the testator to restrain the estate of the wife to her life, and that the words, "devising a remainder to the son," were thus equivalent.

In Boyd v. Strahan, 36 Ill. 355, there was a bequest to the wife of all the personal property of the testator not otherwise disposed of, "to be at her own disposal, and for her own proper use and benefit during her natural life;" and the court held that the words "during her natural life" so qualified the power of disposal, as to make it mean such disposal as a tenant for life could make.

Numerous other cases to the same purport might be cited. They all show, 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 there are other words clearly indicating that a larger power was intended.

The position that the complainant is estopped, by the proceedings for the foreclosure of the mortgage, from asserting title to the property, has less plausibility than the one already considered. [The balance of the opinion on this point is omitted.]

The decree of the Circuit Court must be reversed and the case remanded for further proceedings in accordance with this opinion; and it is so ordered.

SWAYNE and DAVIS, JJ., dissented.

WOODBRIDGE v. JONES.

(Supreme Judicial Court of Massachusetts, 1903. 183 Mass. 549, 67 N. E. 878.)

Petition, filed February 25, 1901, for registration of title under the land registration act, St. 1898, c. 562, R. L. c. 128, to a parcel of land on the corner of Denver and Central Streets in the town of Saugus, known as the Salmon Snow place and being a portion of the real estate formerly owned by William H. Twiss, late of Saugus, deceased. The respondents in their answer denied that the petitioners were seised in fee simple of the premises described in the petition, for the reason that as a matter of law the second clause of the will of William H. Twiss did not empower Sarepta Twiss, grantor of the petitioners, to give a good and valid deed of the premises.

The case was tried before Davis, J. The second clause of the will of William H. Twiss is quoted by the court.

The property in question, together with other land, had been conveyed to the testator in January, 1881, by Nancy Snow, the mother of the testator's first wife, and the great grandmother of the defendant Dora S. Jones. The testator and his second wife, Sarepta Twiss, were married in 1858. In 1878 Nancy Snow, then a widow, who had for some years lived alone and had received much care from the testator and Sarepta, having become old and feeble was brought by the testator to his own home and there cared for by the testator and Sarepta until 1887, when she died at the age of eighty-seven years, devising all her property, to the appraised value of $1,526, to William H. Twiss, with the exception of a legacy of $50 to her grandson, the father of Dora S. Jones.

The probate inventory of the estate of William H. Twiss showed real estate to an appraised value of $5,985, and personal estate to an appraised value of $12,793, the premises in question being appraised at $1,900.

On January 30, 1901, the premises were conveyed to the petitioners by Sarepta Twiss by a full warranty deed in common form.

On the foregoing facts the judge ruled as matter of law, first, that under the second clause of the will of William H. Twiss, his widow, Sarepta Twiss, took a life estate in the premises in suit, with a power of disposing of the same in fee simple; and second, that the deed from her to the petitioners of January 30, 1901, was a valid exercise of such power; and filed a decision ordering a decree for the petitioners. At the request of the respondents, he reported the case upon the foregoing facts, rulings, and decision, for determination by this court. If the rulings were right, a final decree was to be entered for the petitioners as ordered. If the rulings were wrong, a final decree was to be entered dismissing the petition.

HAMMOND, J. Before proceeding to the consideration of this case, we desire to comment upon the form of the report. The report calls

for the interpretation of a clause in a will. In such a case, for reasons too obvious to be stated, not only the clause itself, but the whole will, should be placed before us; and, where that is not done, we cannot be entirely free from apprehension that something which, if placed before us, would have thrown light upon the question involved, may have been omitted, and, in a close case, that the thing omitted might have led us to a different conclusion. In the report before us, no part of the will is contained in the report, except the clause upon which the question before us has arisen, and we therefore enter upon the consideration of it with reluctance.

The clause is as follows: "I devise and bequeath all the rest and residue of my estate, both real and personal, to my wife, Sarepta Twiss, during her life, to use and dispose of the same as she may think proper, with remainder thereof on her decease, one-third to the heirs of my brother Isaac Twiss, one-third to the heirs of my brother John G. Twiss, and the balance to Dora S. Jones above mentioned." And the question is whether the life tenant had the power to dispose of any portion of the real estate in fee. It is a narrow and difficult question. If the writer of this will had studied the decisions made in this state and elsewhere, with a view to frame a clause which in that respect should be as ambiguous and obscure as possible, it is doubtful if he could have selected language more appropriate for his purpose than that which he actually used. As to a student in geometry it sometimes happens that a solid angle in a particular figure before him will seem at one moment to point up, and at another moment down, so the interpretation of this clause seems to change according as emphasis is placed on the word "dispose," on the one hand, or on the technical meaning of the word "remainder," on the other. On the one hand, it is urged that by the express language of the will there is devised to the wife a life estate only, with the remainder to the other devisees named in the clause; that the word "remainder" is used in its proper technical sense, namely, as describing an estate limited to take effect and to be enjoyed after the determination of another estate which is created with it, and that in this case the previous estate is a life estate; that, if the testator had meant by the word to indicate only such property as remained undisposed of at the decease of the life tenant, he would have avoided this technical word, and would have used some such phrase as "whatever remains"; that, as against the technical meaning of the word “remainder," the testator, by the phrase "to use and dispose of the same as she may think proper," meant simply to emphasize in express language the powers over the property which are conferred by law upon the life tenant as such, just as sometimes similar language following a devise in fee has been held to describe expressly only what the law would have implied, and therefore to be of no real legal effect. See Veeder v. Meader, 157 Mass. 413. 32 N. E. 358.