Simpkins v. Bales

Wills: construction: lipe interest with power op sale. A will which provides that the property of 'testator, both real and personal, shall pass to the wife “to be used and enjoyed and dis- - posed of as seemeth the best to her during her natural life or so long as she remains my widow,” carries the fee title.

Appeal from -Van Burén District' Court. — Hon. M. A. Roberts/Judge. The petition alleges that Thomas D. Simpkins departed this life in 1893, and his widow, Phebe Simpkins, some years later; that seven children were born to him, three of whom are dead; that one of these and the heirs of two others have conveyed their -interest in the real estate in controversy to the defendant John E. Bales; that the defendants Matilda A. Bales and Hester PI. James are daughters of deceased; that the plaintiffs are the widow and heirs of a deceased son, and together are entitled to one-seventh of the said land, and pray that their respective shares be set apart and partition be decreed. John E. and Matilda A. Bales in their answer admitted conveyances, and alleged, among othe’" things, that said Simpkins left a will executed in 1862, which was admitted to probate shortly after his' death; that under its terms his widow, Phebe, was given power to sell said real estate, and that in 1891 she conveyed the same to the defendant Matilda A. Bales, and they prayed that title be quieted in the latter. To this answer the plaintiffs demurred on the ground that “Phebe Simpkins took no fee title to the property described, * * * and had no authority to convey the fee title.” The demurrer was overruled. Thereafter portions of the pleadings were withdrawn so as to submit the cause as to all the defendants on the issues of law raised by the demurrer. The plaintiffs and Hester IT. James elected to stand on the ruling, and decree was entered quieting title in the grantee of the testator’s widow. The plaintiffs and defendant James appeal.