
    Margaret Mooy vs. Peter J. Gallagher et al.
    
    JUNE 3, 1914.
    Present: Johnson, C. J., Parkhurst, Sweetland, Vincent, and Baker, JJ.
    
      (1) Wills. Life Estate with Power of Disposal.
    
    Testatrix by will devised and bequeathed the residue of her estate to her husband “for his sole use and benefit during the term of his natural life, and upon the death of my said husband I direct that that which is remaining in possession of said (husband) be divided as follows:” After stating the method of division the will provided, “While having left my estate to my husband during his lifetime, it is my will that he be not restricted in any manner from using or disposing of all or any part of my real estate except the estate (describing it) nor all or any part of my personal property whether deposited in any bank or banks or otherwise invested. ”
    
      Held, that the husband received a life estate' with power of disposition, and therefore the limitations over were not void as repugnant to the estate in the life tenant.
    
      Held, further, that the power of disposition by a conveyance inter vivos did not extend to a disposal by will.
    
      Trespass and Ejectment.
    Heard on agreed statement of facts.
   Parkhurst, J.

This is an action of trespass and ejectment brought by the plaintiffs to recover from the defendants, Gallagher and Davis, possession of a certain parcel of land in the city of Providence (hereinafter fully described).

To the declaration the defendants plead title in the defendant, Gallagher, and title as tenant in the defendant, Davis.

Whether the title is in the plaintiffs or the defendants will depend on the construction to be given to the wills of Mary Donnelly and John Donnelly, through whom all the parties to the suit make claim. Both of these wills have been duly proved. The agreed statement of facts ehminates all question of pleadings in the case and brings the question to the attention of this court for the construction of the two wills. The agreed statement of facts is as follows:

“In the above entitled case, it is agreed and stipulated that the following are facts:

“Mary Donnelly, late of the Town of East Providence, in said County of Providence, died on February 25, 1908, leaving a last will and testament (a copy whereof marked ‘Exhibit A’ is annexed hereto and made a part hereof), which was duly prqved and approved by and before the Probate Court of said Town of East Providence on March 23, 1908, from which probate no appeal was taken.

“That Mary Donnelly left surviving her, her husband, John Donnelly, a daughter, the plaintiff, Margaret Mooy, and three grandchildren, the plaintiffs, Willimena Mooy, Henry L. Mooy and Mary A. Chace, formerly Mary Mooy, that last three being children of the said Margaret Mooy.

“That Mary Donnelly, at the time of her death, was seized in fee simple and possessed of a certain tract of land, with the buildings and other improvements thereon, and the appurtenances thereto, situated in the city of Providence, in said County of Providence, on the northwest corner of Balch Street and Pacific Avenue, bounded and described as follows:

“Beginning at the southwest corner thereof at the point where the westerly line of Pacific Avenue intersects the northerly line of Balch Street; thence northerly bounding easterly on Pacific Avenue 80 feet; thence westerly 68.23 feet, more or less; thence southerly 80 feet to Balch Street; thence easterly bounding southerly on Balch Street 68.57 feet, more or less, to the point and place of beginning; containing by estimation 5,472 square feet, more or less; said tract of land is laid out and designated as lots 535 and 536 on assessors’ plat No. 50, on record in the Assessors’ Office, in said Providence, and also as lots 175 and 176 in section 0 on the Elmwood Nursery Plat No. 2, on record in the office of the Recorder of Deeds of said city of Providence.

£' That said Mary Donnelly, in and by the second paragraph of her last will and testament, devised and bequeathed the rest and residue of her estate, real, personal and mixed, (said rest and residue including the above described tract of land), in the following manner:

“'Second: That the rest and residue of my estate, real, personal and mixed, that which I now possess as well that which I may subsequently acquire I leave to my husband, John Donnelly, for his sole use and benefit, during the term of his natural life, and upon the death of my said husband, John Donnelly, I direct that that which there is remaining in possession of said John Donnelly be divided as follows:

To Peter John Galligan, the house and lot now designated as No. 81 Pleasant View Avenue, Providence, Rhode Island.

To Mrs. Annie Galligan Commit, my niece, the sum of $100 (One hundred dollars).

To Daniel Lyons, my cousin, the sum of $100 (One hundred dollars).

To Roman Catholic Church of St. Brendan’s, East Providence, the sum of $100 (One hundred dollars).

'"The rest and residue real, personal or mixed, I direct that it be divided as follows: One-half to Mrs. Margaret Moy, and one-half equally between the children of said Margaret Moy, namely, Mary Moy, Willimena and Henry Moy.

“‘After the death of my said' husband, John Donnelly, I hereby nominate and appoint my daughter, Margaret Moy, executrix of this my last will and testament.

“‘While having left my estate to my husband, John Donnelly, during his lifetime, it is my will that he be not restricted in any manner from using or disposing of all or any part of my real estate except the estate No. 81 Pleasant View Avenue, Providence, It. I., nor all or any part of my personal property whether deposited in any bank or banks or otherwise invested.

“That said John Donnelly, during his lifetime, took.and enjoyed the rents and profits of said parcels of land, and died on February 27, 1913, a resident of said town of East Providence, possessed of the same, never having disposed thereof during his lifetime.

“That said John Donnelly left a last will and testament (a copy whereof marked ‘Exhibit B’ is annexed hereto and made a part hereof), which was duly proved and approved by and before the Probate Court of said town of East Providence, on the 14th day of April, 1913, from which probate no appeal was taken.

“That in and by said last will and testament, said John Donnelly devised said tract of land above described to the defendant, Peter John Gallagher, alias John Peter Gallagher, alias John Doe, whose correct name is John Peter Galligan, as follows:

“‘I give and devise unto said John Gallagher one two-tenement house now owned by me and situate at the corner of Pacific Avenue and Balch Street, in said city of Providence, to him his heirs and assigns forever. ’

“That thereafter the said defendant, John P. Galligan, entered into possession of said described tract of land and is now in possession thereof, and claims that the above quoted clause of said will, of said John Donnelly, conveyed -to him the title of said described tract of land in fee simple, whereas the plaintiffs, said Margaret Mooy, Willimena Mooy, Henry L. Mooy, and Mary A. Chace claim that on the death •of the said John Donnelly, the title to said above described tract of land passed to them, in fee simple, as tenants in common, under said will of said Mary Donnelly, in the ■following proportions:

One-half thereof to said Margaret Mooy.

One-sixth thereof to said Mary A. Chace.

One-sixth thereof to said Willimena Mooy.

One-sixth thereof to said Henry L. Mooy. ”

■ Thereafter, the case was certified to this court in accord.ance with Section 4 of Chapter 298 of the General Laws, 1909. By the agreed statement of facts, it appears that Mary Donnelly, of East Providence, died testate February 25th, 1908, leaving surviving her her husband, John Donnelly, .a daughter, the plaintiff, Margaret Mooy, and three grandchildren, the plaintiffs, Willimena Mooy, Henry L. Mooy, .and Mary A. Chace (formerly Mary Mooy), the last three being children of said Margaret Mooy.

That, at the time of her death, Mary Donnelly was ■seized of the premises in question; that, by the second paragraph of her will, she devised and bequeathed the rest and residue of her estate, real, personal and mixed, to her husband, John Donnelly, "for his sole use and benefit during the term of his natural life, and upon the death of my said iusband, John Donnelly, I direct that that which there is remaining in possession of said John Donnelly be divided as ■follows:

“ To Peter John Galligan, the house and lot now designated .as No. 81 Pleasant View Avenue, Providence, Rhode Island.

"To Mrs. Annie Galligan Commit, my niece, the sum of $100 (One hundred dollars).

“To Daniel Lyons, my cousin, the sum of $100 (Onehundred dollars).

"To Roman Catholic Church of St. Brendan’s, East "Providence, the sum of $100 (One hundred dollars).

“The rest and residue real, personal or mixed, I direct that, it be divided as follows: — one-half to Mrs. Margaret Mooy, and one-half equally between the children of said Margaret Mooy, namely, Mary Mooy, Willimena and Henry Mooy.

The will then nominates and appoints the testatrix's said daughter, Margaret Mooy, executrix after the death of said John Donnelly and concludes as follows:

“Whilehaving left my estate to my husband, John Donnelly, during his lifetime, it is my will that he be not restricted in any manner from using or disposing of all or1 any part of my real estate except the estate No. 81 Pleasant View Avenue, Providence, R. I., nor all or any part of my personal property, whether deposited in any bank or banks, or otherwise invested. ”

That John Donnelly died testate February 27th, 1913„ possessed of the premises in question, never having disposed of them during his lifetime; that, by his will, he devised the premises in question as follows:

“I give and devise unto said John Gallagher one two-tenement house now owned by me and situate at the corner of Pacific Avenue and Balch Street, in said city of Providence,, to him his heirs and assigns forever.

That thereafter the defendant, Gallagher, entered into, possession of said premises and is now in possession, claiming; the same under said clause of said will of said John Donnelly,, while the plaintiffs claim that, upon the death of said John Donnelly, the title to said premises passed to them in fee simple, as tenants in common under the will of said Mary Donnelly.

The questions arising under the facts are as follows:

1. Was the estate given to John Donnelly by the will of Mary Donnelly an absolute estate in fee so that the limitations over were void:

2. Was such estate a life estate only, with a power of disposition:

3. If the second question is answered in the affirmative,, could John Donnelly exercise such power of disposition by will or was his exercise of such power limited to a conveyance inter vivos.

The rule that in the construction of a will the intention of the testator must govern where that intention can be legally carried out has been so often stated that no authority therefor need be cited.

An examination of the provisions of Mary Donnelly’s will indicates clearly that her intention was to give her husband, John Donnelly, an estate for life in all of her property, real and personal, remaining after the payment of her debts and funeral expenses, “for his sole use and benefit; ” that as to her real estate (with the exception of a certain piece of real estate) she gave him power to use or dispose of all or any part thereof during his lifetime; that she intended that he might, if he had need, completely exhaust the same during his lifetime, but that she also clearly intended, in the event that her husband failed, during his lifetime, to use or dispose of all of her real estate, that her daughter, Margaret Mooy, and her three grandchildren, Willimena, Henry and Mary Mooy, should each receive a portion of all that remained in his possession at the time of his death, because she provides, “and upon the death of my said husband, John Donnelly, I direct that that which there is remaining in possession of said John Donnelly he divided” among certain persons mentioned, who are the plaintiffs in this action.

The real estate in question was a portion of Mary Donnelly’s estate that remained after the payment of her debts and funeral expenses and so passed to John Donnelly under Mary Donnelly’s will and was used and enjoyed by him during his natural life; it was never disposed of by him during his life and upon his death it remained “in possession of said John Donnelly.”

The testatrix’s will exactly fits this situation, for it says: “I direct that that which there is remaining in possession of said John Donnelly be divided as follows,” and then makes a devise to the defendant, Gallagher, three separate bequests of $100 each, and gives the rest and residue to these plaintiffs, one-half to Margaret Mooy, and one-sixth each to Willimena Mooy, Henry Mooy and Mary (Mooy) Chace.

. It is claimed on behalf of the plaintiffs and is not disputed by defendants that the estate given to John Donnelly by the will of Mary Donnelly was not an estate in fee, but a life estate with power of disposition.

Gases of this kind, viz.: a devise of a life estate with an absolute power of disposition and a remainder over have been passed upon by courts in many jurisdictions. The great weight of authority is to the effect that a life estate is not changed to a fee by the added power of disposal in the life tenant, but that the estate given the taker is a life estate with an added power of disposal. The life estate is regarded as property, the power of disposal as a mere authority which the tenant for life may use or not as he pleases.

In arriving at this conclusion, courts have recognized the rule that the intention of the testator must be upheld if possible. They have said that there is no way of doing this except by holding that a life estate is given with power in the life tenant to cut off the remaindermen and that such a construction gives life to the whole instrument. On the other hand, they have said that, if a fee is held to pass because of the added power of disposition, the intention of the testator is upset by the application of an arbitrary rule of law. See note to Steiff v. Seibert et al. (Ia. 1905), 6 L. R. A. (N. S.) 1186.

This point was decided in the case of R. I. Hospital Trust Co. v. Commercial National Bank, 14 R. I. 625, affirmed in Tilton Petr., 21 R. I. 426; and is admitted by the defendant to be the settled law of this state, in accord with the great weight of authority. See, also, Phillips v. Wood, 16 R. I. 274.

It follows therefore that the limitations over are not void as being repugnant to the estate in the fife tenant.

The only question which is really contested is whether John Donnelly could exercise his power of disposition by will, or was such power limited to a conveyance inter vivos.

Mary Donnelly left her estate to her husband for his life for Ms “sole use and benefit;” hence, a devise by him was. neither for his use nor benefit. The testatrix apparently intended that her will, and not that of her husband, should control the destination of any of her property remaining in hi's possession at his death, and in similar cases the courts, have so held.

In Garland v. Smith, 164 Mo. 1, the court on p. 15, quoted 2 Washburn on Real Property (5th Ed.) Vol. 2, 707, with approval as follows: ' ' When the mode of executing a power' comes to be considered, it will be found, that, in order to the execution being valid, the law is exceedingly strict in requiring a precise compliance with the direction of the donor, as. expressed in his deed or will” and the court adds, “And particularly is this true as to a power to cut out remainder-men. ”

In 1 Jarman on Wills (6th Eng. Ed.) p. 791, it is said:. “So a gift to A 'for her own absolute use and benefit and disposal5 with a gift over of any part remaining ' undisposed of5 at her death, gives A a life interest, with a power of disposition by act inter vivos, but not by will.55

In re Thomson’s Estate, Herring v. Barrow, L. R. 13 Ch. D. 144, a testator, by his will, gave realty and personalty to. the widow “for the term of her natural life to be disposed of as she may think proper for her own use and benefit according: to the nature and quality thereof55 and “in the event of her decease, should there be anything remaining of the said property or any part thereof,55 he gave “said part or parts. thereof55 to certain persons.

It was held that the widow took a life estate with an absolute power of disposition exercisable by her during her lifetime, but not by testamentary instrument. Vice Chancellor Hall said at p. 146: '‘ We have got here a gift for life, and then superadded to the life interest we have the words. ' to be disposed of as she may think proper for her own use and benefit according to the nature and quality thereof.5 . . . '' I think that those words confer a power and do not. give property. That view reconciles the whole. The words ' for her natural life ’ are insensible unless, as regards property, she was only to take a limited interest. The words' secondly, in the event of her decease should there be anything remaining of the said property or any part thereof, ’ draw a line at the death of the lady, so that what is 'remaining’ at the moment of her death becomes at that time the subject of the gift over and belongs to the residuary legatees: 'Remaining’ is consistent with there being a power of disposition other than a testamentary power. When once you arrive at the conclusion that it is- power and not property which is intended, you can give effect to the limited interest for life, superadding a power of disposition not extending to a testamentary instrument; and this seems to me the true construction of this will.”

On appeal, this decision was affirmed in Herring v. Barrow, 14 L. R. Ch. D. 263, James, L. J., saying at p. 264: ''If there is one thing clearer than another in the case it is that the testator intended his own will, and not that of his wife, to be that by which the destination of his property was to be determined.

"At her decease, should there be anything remaining, the testator gives it over. What remained was what she was in enjoyment of at her death, and why should not the gift have effect?”

See, also, re Pounder, 56 L. J. Ch. (N. S.) 113; Doe v. Glover, 1 C. B. 448. In re Pounder, supra, it is said, at p. 115: “The intention was that such of the property as remained in specie at the time of her death should pass— not under the wife’s will, but under the will and codicil of the testator. ”

In Ford v. Ticknor, 169 Mass. 276, a husband who was tenant in common of land with his wife gave her by will his entire estate "to hold to her during her lifetime, with full power to use and dispose of the same as she shall deem right and proper.” After her death, he gave, devised and bequeathed "all the remainder of my said estate” to his son, Ms heirs and assigns forever. The court held that the power of disposal in the wife did not extend to a disposal by will. The court said, at p. 281, that the “dominant purpose is to give the wife a life estate, with a remainder given by the testator to his son, and the power of disposal is merely incidental to the life estate to make it fully effectual, and so that, if she deems best, her use of it during her life may exhaust the full value of the property. We regard the power in the present case as one only to be exercised during the active enjoyment of the life estate, and in aid of that enjoyment. ”

In Wooster v. Fitzgerald, et al., 61 N. J. L. 368, a husband, by his will, made the following provision for his wife: “I order and direct that all my estate, real, personal and mixed, shall, during the life of my beloved wife, should she survive me, pass into her hands, and be subject to her sole management and control, to keep and use, or sell and dispose of the same as she shall see fit. From and after the death of my wife all my estate, real, personal and mixed, which shall then remain, I order and direct my executors to dispose of as follows.” It was held that the wife’s power of disposal must be exercised inter vivos and that so much of the estate as was undisposed of at the wife’s death became subject to gift over. The court said, at p. 372: “ The power of disposal it seems to me, is one which must be exercised inter vivos. The provision of the husband’s will, following the bequest to the wife, ‘from and after the death of my wife, all my estate which shall then remain I order and direct my executors to dispose of, ’ etc., draws the line at the wife’s death, so that what is remaining at that time becomes subject to the gift over. The plain intention of the testator is that if his wife has not disposed of all his estate during her lifetime — if any of it remains in her hands at her death — it shall go to the persons designated in his will. ”

In Keniston v. Mayhew, 169 Mass. 166, the will of a testatrix gave her sister the remainder of her estate, real and personal, for life, “to be disposed of at her discretion,” with remainders over at her decease. Held, to create a power of disposal during life, but not by will. See, also, to the same effect: Evans et al. v. Folks, 135 Mo. 397; Terry v. Wiggins, 47 N. Y. 512, 517; Gruenewald v. Neu, 215 Ill. 132, 138; Small v. Thompson, 92 Me. 539.

In view of the above quoted cases, this court is of the opinion that the power of disposition given to Jdhn Donnelly could only be exercised by conveyance during his lifetime and not by will. We find that it was the plain intention of the testatrix that he should have such life estate in her property “for his sole use and benefit;” and the power of disposition while broad and general in terms, nevertheless was also intended for his sole use and benefit; and that it was also just as plainly the intention of the testatrix that whatever remained in his possession at his death should be divided between her daughter and-her daughter’s children as above set forth; and that this latter provision limits the power of disposition so as to shut out disposition by will, as in the cases above cited. No cases are cited on behalf of defendant which in any way tend to disturb our conclusions above set forth. The case of Burbank v. Sweeney, 161 Mass. 490, (upon which defendant strongly relied) is very different in many of its aspects; there the testator after giving all his estate to his wife for life dealt with the remainder after her death, by making three specific devises and bequests to three legatees, leaving his wife to dispose of the rest of the estate “as she may deem expedient; ” and if she should make no disposition then to his heirs at law. It plainly appeared that the testator had made such express bequests as he desired; that he wished and expected his wife to retain the homestead and property for her support during life; they had no children or lineal descendants, and there was no devise over of the remainder to any particular person. The whole argument of the case shows an entirely different state of affairs from what is revealed in the case at-bar, and in holding that the wife had power of disposal by will in no way militates against the cases above cited. The case of Burbank v. Sweeney, supra, is expressly distinguished in Ford v. Ticknor, 169 Mass. 276, 280, above cited.

Greenough, Easton & Cross, Harry P. Cross, of counsel, for plaintiffs.

John H. Flanagan, for defendants.

In the case of Forsythe v. Forsythe, 108 Pa. St. 129, there was no devise over of any remainder, and it was properly held that the life tenant under general power of disposal had a testamentary power. In Wead v. Gray, 78 Mo. 59, the devise was of an absolute estate in fee, and the limitation over was held void. In Dillon v. Falloon, 158 Pa. St. 468, there was an absolute power of testamentary disposition and no devise over. In Cueman v. Broadnax, 37 N. J. L. 508, there was a trust deed with general power of appointment and no limitation over. In Fairman v. Beal, 14 Ill. 244, there was a general power and no devise over. In Kimball v. Sullivan, 113 Mass. 345, the devise was of a fee, or if not, then there was a power of testamentary disposal plainly and necessarily implied from the language of the will.

After careful consideration of all the cases upon the briefs and of the language of the whole will, we are clearly of the opinion that John Donnelly had no power of disposition by his will, and that the estate described in the agreed statement of facts passed under the will of Mary Donnelly to the plaintiffs, as claimed by them.

The case is remitted to the Superior Court with direction to enter its judgment for the plaintiffs.

John P. Fox, for complainant.

Edward C. Stiness, Frederick W. O’Connell, for respondent, Vernon L. Robbins.

Luke Kavanagh, for respondents, Ellenor Taft, Duty E. Caswell, Flora B. Robbins.  