In re Dorgan's Estate

• Decision Date: 01 July 1916
• Citation: 237 F. 507
• Parties: In re DORGAN'S ESTATE.
• Court: U.S. District Court — Southern District of Iowa

237 F. 507

In re DORGAN'S ESTATE.

United States District Court, S.D. Iowa, Davenport Division.

July 1, 1916

M. V Gannon, of Davenport, Iowa, for bankrupt.

E. M Sharon, of Davenport, Iowa, for one objector.

WADE District Judge.

Upon questions certified by the referee, it is necessary to construe the will of John Kelly, deceased, in order to determine whether Edmund J. Dorgan has any interest in said estate which passes to his trustee in bankruptcy.

The portion of the will in controversy is as follows:

'As to all the rest and residue of my property, of whatever kind of which I may die seized, I give and devise the same to my beloved wife, Mary Kelly, for and during the period of her natural life, and give her full power to use the same without let or hindrance as she may see fit, giving and granting to my said wife, full power to sell and convey any real estate left by me, and to give proper deeds and conveyances for the same.

'After the death of my wife, I hereby give, devise and bequeath to my nieces and nephews, as follows, (naming them, including the bankrupt,) all of the proceeds of my estate left after death of my wife, and same to go to said last above named parties, who are my nieces and nephews, share and share alike.'

The proof shows tat the estate consists of moneys and credits and a small parcel of real estate. This will, being made in Iowa and affecting property located in Iowa, must be construed under the decisions of the Supreme Court of the state of Iowa. In view of the numerous expressions of the Supreme Court of Iowa upon similar language used in wills, there can be no question about the effect of the foregoing provisions.

The purpose of the testator clearly was that the estate should pass to his wife for her use and benefit during her lifetime, with the right to use, not only the income, but such portions of the principal as might be necessary for her proper support, maintenance, and comfort. It clearly was not the intention to grant her a fee-simple title in the real estate, or an absolute title in the personal property. All the language of the will must be given effect, and if testator intended that she was to be the absolute owner of the property he would not have made a devise of the portion remaining after her death; nor can it be assumed that the testator had any intention of vesting her with the property with the purpose or intent that she should dispose of the same during her lifetime, except for her own use and benefit.

He gave her 'full power to use the same without let or hindrance as she may see fit. ' The word 'use' does not signify the broad power of disposal for other purposes than her own use; nor does the grant of 'full power to sell and convey any real estate left by me' signify more than that the testator wanted to have her unhampered in the handling of the estate to her use and benefit, so that she would get the fullest enjoyment therefrom, and it was clearly his intention that, if she deemed it advisable, she should have the power to dispose of the real estate and to convey title thereto. The language of the will is as broad as possible in conferring upon her absolute control for the purposes which the language of the will clearly indicates the testator had in mind.

The language of this will is no more effective than the language in the will in Paxton v. Paxton, 141 Iowa, 96, 119 N.W. 284, where the testator bequeathed unto his wife--

'all my property real and personal, of any name or nature, to be by her used and enjoyed as she may choose during her natural life, and at her death, if any property is remaining, to be divided equally among my children.'

In this case the Supreme Court of Iowa held that the widow did not acquire a fee-simple title; that she only acquired the use; and, practically settling the question submitted in this case, the Court says:

'A devise which passes only a life estate may nevertheless be coupled with a

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