Gibson v. Gibson

Brooke, J.

(after stating the facts). It is the first *38 contention of the appellant that the bill of complaint should have been dismissed in the court below upon the ground that there is an adequate remedy at law and that the probate court had full and complete juris.diction; and upon the further ground that the question involved is res adjudieata by reason of the order of the probate court (from which no appeal was taken) making a partial distribution of the estate. Inasmuch as the question is now before this court on appeal from a decree duly entered in the court below and as counsel for both parties have fully argued and briefed the controlling question — that of the construction of the language of the will — we are of the opinion that no good purpose would be served by delaying a determination of the basic question until it could be brought here on appeal from an order of the probate court making a. final distribution of the estate.

The simple question involved is whether the language used in the will here under consideration brings it within that class of cases where the legatee and devisee has been held to take a fee or within that class where the legatee and devisee takes a life estate only. In the first class will be found the following: Jones v. Jones, 25 Mich. 401 ; Smith v. Smith, 71 Mich. 633 ; Dills v. LaTour, 136 Mich. 243 ; Moran v. Moran, 143 Mich. 322 (5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648 ); Killefer v. Bassett, 146 Mich. 1 ; Turnbull v. Johnson, 153 Mich. 228 ; White v. Railway Co., 190 Mich. 1 ; Crisp v. Anderson, 204 Mich. 35 ; In re Davis’ Estate, 205 Mich. 129 . And in the second class we find Glover v. Reid, 80 Mich. 228 ; Gadd v. Stoner, 113 Mich. 689 ; Jones v. Deming, 91 Mich. 481 ; Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584 ); Hull v. Hull, 122 Mich. 338 ; In re Mallary’s Estate, 127 Mich. 119 ; Heilwig v. Nybeck, 179 Mich. 292 ; Farlin v. Sanborn, 161 Mich. 615 ( 137 Am. St. Rep. 525 ); Laberteaux v. Gale, 196 Mich. 150 ; Drier *39 v. Gracey, 203 Mich. 399 ; Woolfitt v. Preston, 203 Mich. 502 ; Clark v. Mack, 161 Mich. 545 ; In re Moor’s Estate, 163 Mich. 353 ; Bateman v. Case, 170 Mich. 617 ; Sellick v. Sellick, 207 Mich. 194 .

It was said in effect in Gadd v. Stoner and Killefer v. Bassett, supra, that the test to be applied is,

“Does the will give an unlimited or only a modified power of disposition in the first taker? If the former, it is treated as a conveyance in fee; if the latter, a life estate.”

No service of value to the profession will be performed by, a review of the cases cited. It seems to us sufficient to say that, applying the test just mentioned, the language of this will conveys to Laura Richardson an estate coupled with an unlimited power of disposition. The granting words of the will — “I give, devise and bequeath to Laura S. Richardson” — are entirely adequate to convey an estate in fee. They are qualified, if at all, by the following language:

“The said gifts, bequests and devises to be by the said Laura S. Richardson used, enjoyed and appropriated during her natural lifetime, with full and complete powers of alienation without limitation or restriction.”

Giving the natural meaning to the words used in this excerpt from the will, it is seen that Laura S. Richardson may not only use and enjoy, but that she may appropriate the devised portion of the estate and that she had complete power of alienation “without limitation or restriction.” Under all the authorities, we are disposed to the view that this language cannot be construed as limiting the estate in her theretofore created.

The subsequent portion of the will is an attempt “after making an absolute devise with full power of alienation and consumption * * * to control the disposition of such uncertain portion of the devised *40 estate as might remain after the death of the original devisee” (In re Moor’s Estate, 163 Mich. 353 ), which we have held many times may not be done. As was said in Killefer v. Bassett, supra, quoting from Law v. Douglass, 107 Iowa, 608 ( 78 N. W. 212 ):

“There are some things, however, which even a testator may not do, and which the courts are powerless to aid him in doing, however clearly his intentions may be expressed. He cannot create a fee with absolute power of disposal, and at the same time clog that power of alienation by limitations over to another. In other words, he cannot include provisions which are absolutely inconsistent in terms and meaning and have all given force and effect.”

We conclude that the decree of the court below must be reversed and one here entered by the terms of which Laura S. Richardson will take an estate in fee in that portion of the estate given and devised to her in the will.

Steere, C. J., and Moore, Fellows, Stone, and Bird, JJ., concurred with Brooke, J.