
    NATURE OF TITLE OF WIDOW UNDER. HUSBAND’S WILL.
    Common Pleas Court of Greene County.
    Frank E. Shannon v. Charles Shannon et al.
    
    Decided, 1911.
    
      Wills — Devise of Property to Wife for Life with Power to Sell and Consume is a Demse of a Life Estate Only.
    
    Under the devise, “I give and bequeath to my wife [naming her] all my estate both real and personal to be used and disposed of by her according to her best judgment, and at her death to be divided equally between our five children,” the wife did not take a title in fee simple, but a life estate only, with the right to dispose of and convey for her support or consumption; and the rights of the remaindermen are not affected by a conveyance of the property in trust.
    
      
       Affirmed by the Circuit Court without opinion; Circuit Court affirmed by the Supreme Court without opinion, Shannon v. Shannon et al, 85 Ohio State, 456.
    
   Kyle, J.

The plaintiff in this ease brings his action for partition of parts of lots 161 and 162 in the city of Xenia, and avers that he is entitled to the undivided one-fifth part of the same. He claims his title as one of the heirs at law of William Q. Shannon. All the other heirs at law of said William Q. Shannon are made parties defendant.

Charles W. and John R. Shannon file their answer and set forth Item 2 of the will of William Q. Shannon. They further aver that Rebecca A. Shannon, surviving widow of William Q. Shannon, on August 31, 1906, made her conveyance of said premises described in the petition to the two said answering defendants for one dollar and other good and valuable considerations; that on the same day the said answering defendants, contemporaneously with and in connection with the execution of and delivery of said deed of conveyance to them, executed and delivered a declaration of trust reciting that said conveyance to them was subject to the exclusive use and control of Rebecca A. Shannon during her natural life, and further that they held said premises for the benefit of themselves and of the said Charles W. Shannon, Ella B. Mitchell and Prank E. Shannon, and that they would make a sale of said property at such time and upon such terms and in such manner as to them may seem best for said beneficiaries, their heirs and assigns, and aver that they have been in possession and control of said premises since the death of Rebecca A. Shannon, and they claim that by reason of the terms of the will of said William Q. Shannon and the said conveyance and declaration of trust that the said plaintiff is not entitled to partition.

Item 2 of the will of William Q. Shannon is as follows:

‘ ‘ I give and bequeath to my wife Rebecca A. Shannon, all my estate both real and personal to be used and disposed of by her according to her best judgment, and at her death to be divided equally between our five children, viz.: Charles W. Shannon, John R. Shannon, Mrs. Ella Mitchell, Edward L. Shannon, and Prank E. Shannon, and if any of these children should die before the death of their mother, their share of the estate shall go to their lineal heirs equally, and if no heirs, their share of the estate shall be divided equally between their brothers and sister, and if any of the children are in debt to the estate, that indebtedness shall be deducted from their portion.”

The plaintiff filed his demurrer to the answer of the defendants, and the right of the plaintiff to partition is to be determined upon the admitted allegations of the answer.

Whether or not the plaintiff is entitled to partition as against the allegations of the answer depends upon the construction and effect given to Item 2 of the will of William Q. Shannon, and the effect of the conveyance made by Rebecca A. Shannon.

Several questions are presented for consideration and might be considered in the following order:

First. What estate or interest did Rebecca A. Shannon take in the real estate in question under Item 2 of the will?

It is contended by the plaintiff that she took a life estate only. It is contended by the defendants that she took a fee simple.

Second. If Rebecca A. Shannon only took a life estate what effect is to be given to the conveyance made by her under the powers given her under said will?

It is contended by the plaintiff that the conveyance and declaration of trust are void and have no effect. It is claimed by the defendants that in making said conveyance if Rebecca A. Shannon only took a life estate it came within the powers conferred upon her and is binding upon the property, and that the same is a bar. to an action for partition on the part of the plaintiff.

The three leading cases that lay down the doctrines that may be said should govern in this case are to be found in the 19th Ohio State, of Baxter v. Baxter, page 490; Johnson v. Johnson, 51st Ohio State, 446, and Home v. Lippardt, 70 Ohio State, page 261.

According to the views that may be taken of these respective cases hangs the issue of the case under consideration. There is just enough difference between the wills in the eases above referred to and the one under consideration to make the solution somewhat difficult.

In the 70th Ohio State by the terms of the will the wife was given an estate in fee simple “with power to sell or dispose of as she may see fit” and providing further that after the death of the wife what should remain would be distributed in a certain manner. The court held that when an estate is devised with the absolute power of disposal a devise over of what may remain is void, and that, therefore the wife took an absolute title, and the words conferring power to sell or dispose of as she may see fit were words of supererogation and added nothing to the title or interest given to the wife.

The language used in the will under consideration is more like the terms used in the will in the case of Baxter v. Baxter, in which case the court held that the wife only took a life estate.

In tbe construction of a will it is tbe object to determine and give effect to the intention of the testator. In the will in the item under consideration there are no words of perpetuity used. The will gives Rebecca A. Shannon “all my estate both real and personal to be used and disposed of by her according to her best judgment, and at her death to be equally divided between our five children.”

To give effect to all the language used in the will it is apparent that the testator intended that at the’ death of Rebecca A. Shannon the property was to be equally divided among their five children. Since the bequest to Rebecca A. Shannon included both real and personal, the phrase, “to be used and disposed of by her according to her best judgment” should be construed in the light of that fact.

If Rebecca A. Shannon took a fee her power and right to vest the title in two of the children as trustees, with power to sell at such time as they might see fit, would be unquestioned, and the conveyance in question would defeat plaintiff in his right for partition.

If Rebecca A. Shannon took only a life estate, then her right and the effect of the deed made by her must depend upon the construction of the powers given her in the will.

Every will must be construed upon its face to give effect, if possible, to the intention of the testator. In the light of the authorities I am of the opinion that Rebecca A. Shannon took only a life estate in the property, and did not take a title in fee simple, and that the rule laid down in the ease of Baxter v. Baxter applies in this case.

The nest question for consideration: If she took a life estate only, was the conveyance made by her, as set forth in the answer, within her powers given under the will ? ' .

If by the terms of the will she had a right to make a conveyance for her own needs or consumption and support only, the conveyance in question not having that effect would be beyond her power and would be of no validity in law. If the broader view is taken and it is held to mean that she could do anything with respect to the property as she might see fit, and having seen fit to make the deed in question it might bind all the parties hereto and defeat the right of partition.

If, instead of making a deed, Rebecca A. Shannon had seen fit by will to dispose of this property, the question would then be presented as to the rights of the legatees under such will as against the heirs of William Q. Shannon — in the broad sense, a bequest by will would have been a disposition of the property as she might deem best, and if such will were held to be good it would defeat the remaindermen under the will of William Q. Shannon. Instead of relying upon a will Rebecca A. Shannon made such a conveyance into the hands of these trustees, which was in effect a disposition of the property after the termination of her life estate, and if binding in law would operate to the defeat of the plaintiff in his immediate right to the property.

Since Rebecca A. Shannon took under the will it does not seem to me that she should in an indirect way be permitted to defeat or affect the right of the remaindermen in the will under which slm took title. If the circuit court were correct in the Kelble case in deducing the right of consumption in the widow by implication under the will which clearly gave her only a life estate by reason of the subsequent bequest of the unconsumed residue, the court in this case could read into the will of William Q. Shannon by implication that Rebecca A. Shannon only took a life estate with the power of consumption and could not defeat the rights of the remaindermen; and, therefore, my conclusion is that Rebecca A. Shannon took only a life estate with the right to convey or dispose of for her support or consumption, and that the conveyance set* forth in the answer in trust, as set forth in the declaration, was not contemplated wdthin the meaning of the terms of the bequest to her, and is an attempt to defeat the right of the remainder-men and destroy a vested right.

The conveyance and declaration of trust will be held to be of no effect in law, and therefore, the plaintiff is entitled to his right of immediate possession and is entitled to a writ of partition as prayed' for in the petition, and the demurrer to the answer will be sustained.  