In re Estate of Oertle
| Citation | 24 N.W. 924,34 Minn. 173 |
| Parties | In the matter of the Estate of Charles Oertle, deceased |
| Decision Date | 03 October 1885 |
| Court | Supreme Court of Minnesota (US) |
The last will of Charles Oertle was duly proved in the probate court for Nicollet county. The debts and expenses of administration having been duly paid, the widow of the deceased (who had remarried, and whose name had become Josephine Sauer) made application to the probate court for an order "assigning to her the property and money belonging to said estate and now remaining in the hands of the said executors." The provisions of the will on which this application was based are stated in the opinion.
The probate court made an order that the widow "have and hold interest for and during her natural life in all the estate, real and personal, of which her former husband Charles Oertle, died seized, or to which he was entitled at the time of his death;" and the court further ordered that before the widow "take possession of said estate she execute and file a bond in the sum of $ 5,000, with sureties to be approved by said court, conditioned for her faithful accounting to said court for the preservation and safe-keeping of the principal of said estate received by said executors and turned over to her, and for the payment and turning over unimpaired all of said personal estate to said minor children and legatees in remainder of said Charles Oertle, upon the decease of said Josephine Sauer." From this order the widow appealed to the district court, upon questions of law only. The appeal was heard by Webber, J who ordered judgment modifying and changing the order of the probate court so as to provide that the widow (Josephine Sauer) "file in the office of said probate court a bond in such sum as said judge of probate shall direct, with sufficient sureties, to be approved by him, conditioned for the maintenance and good education of the children mentioned in said will, (she having voluntarily consented to give such bond,) and that thereupon the executors named in said will Otto Winterer and Louis Horst, deliver and turn over to said Josephine Sauer all the real and personal property of every name and description in their possession or under their control belonging to said Charles Oertle, deceased, for her exclusive use and benefit during the term of her natural life, and that they take her receipt therefor, particularly describing said property, and file the same in the office of said judge of probate; that said Josephine Sauer have power and authority to use, consume and expend such part and portion of said property as may be necessary for her exclusive use and benefit during the term of her natural life, and to provide for the maintenance and good education of said children; but that said executors have the sole and exclusive power to sell any of said property at any time during the life of said Josephine Sauer; and that in case of such sale, they deliver the proceeds thereof (less their reasonable charges for such sale) to said Josephine Sauer and take her receipt therefor, and file the same in the office of said judge of probate; and that, upon the death of said Josephine Sauer, said executors take possession of all said property or any part of the same left by her or the proceeds thereof, and that the same be divided among said children equally, share and share alike." The executors appeal from the judgment of the district court.
G. S. Ives, for appellant.
The use of the expression "and which, or any part of the same then left by her" is of no vital significance and cannot be permitted to overreach a clearly-expressed intention that the widow should take a life-estate only. Green v. Hewitt, 97 Ill. 113; Foote v. Sanders, 72 Mo. 616; Smith v. Bell, 6 Pet. 68; Brant v. Va. Coal Co., 93 U.S. 326; Siegwald v. Siegwald, 37 Ill. 430; Riggins v. McClellan, 28 Mo. 23. In the cases which sustain the doctrine that the words "whatever remains" and similar expressions authorize the person holding the prior estate to consume or dispose of some portion of the principal, there will be found that a power of sale was given to the holder of such estate. 1 Perry on Trusts, §§ 250-252; Burleigh v. Clough, 52 N.H. 267; Second, etc., Church v. Disbrow, 52 Pa. 219.
C. R. Davis and Sumner Ladd, for respondent.
The legal questions involved in this case arise upon the construction of the terms of the will of Charles Oertle, deceased, which, after provisions for the payment of debts, disposes of all the residue of his real and personal estate as follows:
The probate court adjudged and determined that the surviving wife was entitled to a life-estate only in the property real and personal, and further ordered that, before taking possession thereof, she execute a bond, to be approved by the court, for the safe-keeping and faithful accounting by her of the property or capital fund received by her, to the end that the same might be turned over unimpaired to the children of the testator. Upon appeal, the judgment of the probate court was so far modified that it was ordered that the widow should "have power and authority to use, consume, and expend such part and portion of said property as may be necessary for her exclusive use and benefit during the term of her natural life, and to provide for the maintenance and good education of said children; but that said executors have the sole and exclusive power to sell any of said property at any time during her life; and that in case of such sale they deliver the proceeds thereof to her, and take her receipt therefor, and file the same in the office of said judge of probate." In place of the bond required by the probate court, it was ordered, upon her consent, that the widow file a bond with sufficient sureties for the maintenance and education of the children, and that an inventory of the property, real and personal, turned over to her by the executors, receipted by her, be also filed with that court. It was further ordered that upon her death all of the property, or any part of the same left by her, or the proceeds thereof, be divided among the children, share and share alike.
The questions involved require a careful consideration of the several clauses of the will. A power of sale is vested in the executors, to be exercised in their sound discretion. They are, however, given no other authority or control over the property, and have no active trust to execute in or about the same. They have simply a naked power of sale, and the title passed subject to the exercise of such power. Tobias v. Ketchum, 32 N.Y. 319, 329. As respects the real property, a life-estate vested in the wife, and a remainder in fee in the children, subject to be defeated by a sale. Gen. St. 1878, c. 45, §§ 13, 33; Ackerman v. Gorton, 67 N.Y. 63. The same rule is applicable to the personalty; and interests for life and in expectancy may be created and limited therein in the same manner. 2 Kent *353; 4 Kent *282; Burleigh v. Clough, 52 N.H. 267, 278; Sampson v. Randall, 72 Me. 109. In case of a sale of the property, the tenant for life and devisees or legatees in remainder would take the same interests in the proceeds, respectively, as they had in the property. The income would go to the widow, and the principal at her death to the children. Ackerman v. Gorton, supra.
The general rule applicable to the construction of wills is that the intention of the testator, as collected from the whole instrument, is to govern, provided it be not inconsistent with the rules of law. The purpose of the testator in this case was that his property should be used and preserved for the exclusive benefit of his family. Any construction which would permit any part of the estate to be diverted, for the benefit of strangers to his blood or affections, is inadmissible unless necessarily resulting from the terms of the will. To effect this purpose, the general scheme of testamentary disposition appears to have been to give his surviving wife a life-estate in all his property real and personal, with the right to enjoy the use and possession thereof, and to make a future provision for the children through an equal distribution thereof among them...
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