
    No. 743
    MURPHY v. RIKER et
    Clermont Common Pleas
    Decided April, 1925
    1271. WILLS—1. Where provisions of do not conflict with law, intention of testator will prevail.
    2. Fact that legatee is appointed without, bond in settlement of estate under, is evidence of intention to limit her power in property.
   WHITE, J.

D. W. Murphy went into the Clermont Common Pleas to have the will of Margaret Knicely, deceased, construed. It provided as to the item in controversy in part as follows:—“I give, bequeath and devise to my beloved neice Ella May Knicely, all my real estate and personal property for her own use. and benefit forever - - - with full power to sell, mortgage, lease or dispose of whole or any part thereof of my real or personal estate. At her death should there anything of my estate, I bequeath to the Old Peoples Home in Cincinnati, Ohio.” The Court held:

Attorneys—Murphy & Joseph for Murphy; Maxwell & Ramsey and Gregor B. Moormann for Riker; all of Cincinnati.

The fact that after the testatrix gave and bequeathed Knieely her property and in the next sentence it would appear that she appoints Ella May Knieely as a trustee to sell, mortgage, lease or dispose of the whole or any part of said real estate that is necessary for the use and benefit of said Ella May Knieely, clearly shows that the intention of the testatrix was to give her a life estate in said property, with power to dispose of same so far as was necessary for her proper use and benefit.

Instead of adding to her estate, it is very strong evidence of an intention to limit it, because it shows a continuing of some kind of a trust in the estate after the settlement of the estate and limits the power of Ella May in said property, from the fact that the will recites that she is appointed without bond.

“Unless the will conflicts with some provision of law, all other rules of construction must yield to the rule that the intention of the testator, as gathered from the whole will, must control.” Johnson v. Johnson, 51 OS. 446. Under the will, Ella May received a life estate in the property, with power to sell, mortgage, lease or dispose of the whole or any part thereof during her lifetime, and having failed so to do, and to exercise said power, the remainder goes to the defendant, the Old Peoples Home of Cincinnati.  