In re Barrett's Will

• Decision Date: 22 May 1900
• Citation: 82 N.W. 998,111 Iowa 570
• Parties: IN RE BARRETT'S WILL.
• Court: Iowa Supreme Court

111 Iowa 570

82 N.W. 998

IN RE BARRETT'S WILL.

Supreme Court of Iowa.

May 22, 1900.

Appeal from district court, Linn county; William G. Thompson, Judge.

Proceedings for the construction of the will of Philip Barrett, deceased. The trial court held that Eleanor S. Barrett, widow, took but a life estate, and she appeals. Reversed.J. C. Davis and Smith & Smith, for appellant.

Giffen & Voris, for appellee.

DEEMER, J.

The provision of the will we are asked to construe reads as follows: “I give and bequeath to my beloved wife, Eleanor S. Barrett, all of my property, real and personal, of every description, to use, enjoy, and manage as she, in her judgment, sees fit.” Does this devise a fee or life estate? The trial court held that it created but a life estate. If that which follows the word “description,” in the will, were eliminated, there would be no doubt that an absolute estate was devised to the widow; for the words “give and bequeath” are the equivalent of “devise.” In re Burbank's Will, 69 Iowa, 378, 28 N. W. 648. Is the estate limited to a life interest by reason of the use of the words, “to use and enjoy and manage as she, in her judgment, sees fit”? Conditions or limitations imposed on an absolute devise are strictly construed, and will not be allowed to defeat the estate unless it clearly appears that the testator intended to devise but a qualified estate. Schouler, Wills, § 475; Allen v. White, 97 Mass. 504; In Bulfer v. Willigrod, 71 Iowa, 620, 33 N. W. 136, the will read as follows: “I give and bequeath to my beloved wife all my property, both real and personal and mixed, and of every kind, manner, and nature, to use, to her own use and benefit, as she shall deem best for herself and our beloved daughter, Anna M. Kline.” Judge Reed, speaking for the court, said: “The present bequest is a devise of all of the property. Under it she took the title to the property, coupled with the power to make absolute disposition of it. Under the settled rule, it must be regarded as an absolute bequest to her.” If the words, “use to her own use and benefit,” give power of absolute disposition, surely the words, “to use, enjoy it, and manage as long as she, in her judgment, sees fit,” do no less. A devise of property to one, to use and enjoy, is not confined to personal use, unless the context clearly calls for the more limited construction. Such words, as a rule, carry the beneficial estate to the devisee. Hance v. West, 32 N. J. Law, 233; ...