Milner v. Brokhausen

Ladd, J.

— The sole inquiry is whether the life tenant became owner, in her individual right, of the income from and increase of the bequeathed property. Though an estoppel was pleaded, the evidence was insufficient to sustain it, and the rulings on the admissibility of evidence to which exceptions were taken could have had no bearing on the result. The will of T. J. Wilcox, who departed this life in 1896, was duly admitted to probate, and by its terms gave to his widow Mary E., all his property “of every name and nature whether real, personal or mixed, of which I may die seised and possessed, wherever situated, for her own individual use and benefit for and during her natural life, with full power and authority to my said wife to expend the whole' of my net personal estate and the whole of the net income of said real property after payment of taxes for her support and benefit as she may desire.” Subject to this clause, the third paragraph disposed of what might be left, share and share alike, to his four children and a grandson. Mrs. Wilcox became executrix, and, though she charged herself with the appraised value of the property bequeathed, she retained it and managed the same as her husband had done. After the debts of testator and the expenses of administration had been deducted from such appraised value, there remained $1,-613.50. By a manifest error in computation, this was stated in the report to be $613.50'; but beyond doubt she had left the amount in value first stated, and in discharging her as executrix there was no adjudication to the contrary. No amount was fixed in the entry of discharge to which she was entitled regardless of how much remained. IJpon her death, the value of the personal property then in her possession was $3,200. Subsequently all the legatees, except the intervener, disposed of their interest therein to the defendant, Brokhausen, and he- claims the share of intervener, A. I. Wilcox, by virtue of the purchase from him of his interest as legatee in testator’s estate in 189Y. Neither *564 the administrator nor the intervener questions .the defendant’s title to the property or such portion thereof as would have passed, but for the disposition to defendant, to the legatees under the will, but it is contended by them that all the income derived therefrom or increase thereof after testator’s death belonged to Mrs. Wilcox as life tenant and should be distributed through the administrator of her estate.

income and increase property. i. Estates of ?ifeEestates • In the absence of any limitation or restriction thereof, it is well settled that the increase of stock and the income from other property belonging to such an estate inures to the benefit of and is the individual prop-a a erty of the life tenant, and not of the remaindermen. Gorham v. Billings, 77 Me. 386 ; Smith v. Van Ostrand, 64 N. Y. 278; Lewis v. Davis, 3 Mo. 133 ( 23 Am. Dec. 698 ); Hall v. Robinson, 56 N. C. 348 ; Johnsons Adm’r v. Johnsons Heirs, 8 B. Mon. 470 ; Strong’s Executor v. Brewer, 17 Ala. 706 ; 16 Cyc. 621. -

As appears from the last three of the cited cases, an exception seems to have been made in the case of slaves, as it was thought to be more consistent with the feelings of humanity that children born during tenancy for life should go with the mother to the owner in remainder after the particular estate had ended than that a separation should take place by an adherence to the rule applicable to the natural increase of other property. Even this exception does not appear to have been recognized in Delaware and Maryland. Smith v. Milman, 2 Har. (Del.) 497; Bohn v. Hadley, 7 Har. & J. (Md.) 257.

2. Wills: construction : interest of live tenant. But appellee insists that the life tenancy created is restricted to such portion of the income and increase as may be used or appropriated by the widow. If so, then. Undoubtedly such portion of the income and increase as remained at her death would belong to the testator’s estate. Rittgers v. *565 Rittgers, 56 Iowa, 218 ; Stuart v. Walker, 12 Me. 145 ( 39 Am. Rep. 311 ). But the will can not be so construed. The gift is “for her own individual use and benefit during life,” and not a word in the instrument limits or restricts her right to such use and benefit. That the gift was intended to be absolute is indicated by the power of alienation of the “net personal estate” being added as a separate gift, thus recognizing that the use had been disposed of. Moreover, the third clause does not purport to bequeath to the remaindermen anything other than the portion of the original estate which is left.

The district court was in error in holding that the income from or increase of the property during the life tenancy did not belong to the widow in her individual right. As the value of the personal property left by testator less debts and expenses of administration was $1,613.50, and the value of that of which she was in possession at the time of her death and which defendant appropriated was $3,200, the latter must account for $1,586.50 as belonging to her estate.

For the entry of such orders as may be necessary, in view of the situation, to settle and distribute the estate, the cause is remanded. — Reversed.