Crew v. Dixon

• Decision Date: 19 May 1891
• Docket Number: 14,338
• Citation: 27 N.E. 728,129 Ind. 85
• Parties: Crew et al. v. Dixon
• Court: Indiana Supreme Court

27 N.E. 728

129 Ind. 85

Crew et al. v. Dixon

No. 14,338

Supreme Court of Indiana

May 19, 1891

Petition for a Rehearing Overruled Sept. 16, 1891.

From the Clark Circuit Court.

Judgment reversed.

J. K Marsh and A. Dowling, for appellants.

G. H D. Gibson, for appellee.

OPINION

Elliott, J.

Thomas Crew, through whom the parties claim title, was twice married. The appellants are his children by his first marriage. His second wife was Elizabeth Dixon, who was a widow at the time of her marriage to him. The appellee, Eliza Dixon, is her child by her former marriage. Thomas Crew was the owner of personal and real property at the time of his death, and of it he made a testamentary disposition. His widow elected to take under his will. She executed a will wherein she devised to the appellants twenty-five dollars each, and to her daughter the real estate of which her husband, Thomas Crew, died seized.

The provisions of the will of Thomas Crew, so far as they are material to the controversy, are these: "I give, bequeath and devise to my said wife all of my other property of every kind, to be held and used by her during her natural life; the house and lot where I now live to be entirely under her control so long as she shall live, together with all the furniture in the same; and the notes that I may have, to be collected by her in her individual name as they may fall due; the principal of such notes to be held or invested by her as she may deem proper, with the privilege to her to use so much thereof as she may deem necessary to carry on her business or to furnish her a comfortable support. But before her death I desire her to provide by will, or otherwise, for a distribution of whatever of my estate may remain in her hands, among her and my children in such manner as she, in her judgment, shall deem best and most equitable; such distribution not to take effect until after her death."

Where a will limits the estate of the first taker to life, the devisee can not take a fee although he may be invested with a power to appoint those who shall take that estate. In the will before us the estate of the first taker is clearly limited to one for life, for the words employed in describing it expressly designate it as an estate for life, and the superadded words, "to be entirely under her control so long as she shall live," make it impossible to construe the will as devising her the fee. The fee descends to the heirs unless the will either directly makes, or authorizes some one to make, such disposition of the property as breaks or interrupts the operation of the law. Thomas v. Thomas, 108 Ind. 576, 9 N.E. 457, and authorities cited. As the will under discussion does not expressly and directly dispose of the fee, the law must prevail, unless there is a power of appointment which interrupts its operation.

We are clear that the will does invest the first taker with a power of disposing of some of the property named in the instrument, and we have no doubt that a power may be effectively exercised without a reference to the instrument by which it was created. The settled rule is that a power may be executed without a reference to the instrument creating it. Downie v. Buennagel, 94 Ind. 228; South v. South, 91 Ind. 221. But the question of difficulty is as to the nature and extent of the power created by the will of Thomas Crew.

The power is not an absolute one; on the contrary, it is limited and qualified. It is restricted to a class comprising several persons, for it is beyond controversy that the power is to distribute property among persons designated by the testator. The authorities cited by the appellee are far from proving that a power created by words, such as those employed by the testator in this instance, is even a general power. Of Denson v. Mitchell, 26 Ala. 360, it may be said: First, the question there was as to the estate of the devisee, not as to the mode of exercising the power, and, second, the power was unqualified and unrestricted. In Doe v. Thorley, 10 East, 438, there were no limiting words, nor were there any such words in Henderson v. Vaulx, 10 Yerger, 30.

The power which Mrs. Crew assumed to exercise was a special power, and the only question is as to what property was limited. If it covered both the personal and the real property, the appellee must succeed; if it embraced only the personal estate, she must fail. The problem for solution is whether the real estate and the personal property were placed in the hands of Mrs. Crew with the absolute power of disposition. If the will unifies the entire estate, and solidifies in one class both the real and the personal property, then she had authority to disinherit the children of the testator, and devise all the real estate to her daughter. If, on the other hand, the testator did not intend to bring the real estate under the power by making a single class of property, Mrs. Crew could not defeat the law by disinheriting the heirs and appointing her child to take the fee.

The will, as we have seen, limits the estate of the first taker to life, and gives her control of the real property "so long as she shall live," hence she is excluded from exercising any other power except that which resides in a tenant for life. The express mention of one thing excludes all others, and hence the limitation of the power of control to life implies that with life all control terminates. In respect to the personal property, it is otherwise; for, as to that, it is clear that a right was vested in Mrs. Crew to use such of it as she chose, and to distribute what remained at her death at her pleasure, subject only to the limitation that it must be distributed among the members of the class designated by the testator. There is an express division of the property into classes, and not an unification, for it is provided that one species of property may be transferred, but the other can not be consumed or conveyed. The personal property was placed under the dominion of Mrs. Crew for the...