Fullenwider v. Watson

• Decision Date: 23 December 1887
• Citation: 113 Ind. 18,14 N.E. 571
• Parties: Fullenwider v. Watson.
• Court: Indiana Supreme Court

113 Ind. 18

14 N.E. 571

Fullenwider

v.Watson.

Supreme Court of Indiana.

December 23, 1887.

Appeal from circuit court, Montgomery county; Willram P. Britton, Judge.

Action by William W. Watson, appellee, to recover property from Joseph N. Fullenwider, administrator.

Albert D. Thomas, for appellant. Ristine & Ristine, for appellee.

Elliott, J.

The controversy in this case arises upon the provisions of a will reading thus: “I give, devise, and bequeath to my beloved wife, Ann E. Watson, all the real estate of which I may die seized; to have and to hold during her natural life. I also will and bequeath to my said wife all my personal property, including all notes and accounts which may be owing to me at the time of my decease, to have, use, and enjoy the same as she may choose, and to dispose of the same in such manner as she may desire; yet I request that if at the time of her decease any of the personal property shall remain undisposed of that it be given to the children of my son William W. Watson and the children of my daughter Mary C. Garland.” The disputed question is as to the ownership of the personal property remaing undisposed of at the time of the death of the testater's widow. The appellant's position is that the will vests the widow with the absolute ownership of the personal property, and that he, as her administrator, has a right to it. The authorities so fortify this position as to make it impregnable. The bequest to the wife of the testator gives her the whole estate, and the superadded words conferring the absolute power of disposition strengthens the words employed in describing the estate bequeathed to her, although the descriptive words are in themselves quite strong enough to carry the whole personal estate. The case is plainly different from the class of cases represented by Goudie v. Johnston, 109 Ind. 427, 10 N. E. Rep. 296, for here there is no limitation to life, nor is there any restriction upon the power of alienation. The case belongs to the class of which Van Gorder v. Smith, 99 Ind. 404, is a type. We are very far within the authorities when we affirm the proposition that where a bequest of personal property without limitation to life or particular use is made, and is accompanied by an absolute power of disposition, the first taker takes the whole interest. It has been for centuries the rule that where the whole estate is absolutely devised, a repugnant condition must yield. Allen v. Craft, 109 Ind. 476, 9 N. E. Rep. 919. But here there is no condition, for the words employed are words of recommendation, not words of condition or restriction, and the case is within the rule declared by the adjudged cases. Van Gorder v. Smith, supra, and cases cited; Stowell v. Stowell's Ex'r, 8 Atl. Rep. 738;Howard v. Carusi, 109 U. S. 725, 3 Sup. Ct. Rep. 575;Knight v. Knight, 3 Beav. 148; Story, Eq. Jur. § 1070. English chancellors, in later times, have, with reluctance, followed the early decisions upon the subject of precatory trusts, and have not hesitated to depart from them where departure was possiblewithout a direct disregard of the ancient decisions. In one case the vice-chancellor said: “The first case that construed words of...