Little v. Giles

• Decision Date: 03 January 1889
• Citation: 25 Neb. 313,41 N.W. 186
• Parties: LITTLE ET AL. v. GILES ET AL.
• Court: Nebraska Supreme Court

25 Neb. 313

41 N.W. 186

LITTLE ET AL.

v.GILES ET AL.

Supreme Court of Nebraska.

Jan. 3, 1889.

Syllabus by the Court.

1. At common law a devise of real estate, in order to convey the fee, must contain words of inheritance or perpetuity; but under the statutes of this state such words are not necessary to convey the fee, and every devise of land is to be construed to convey all of the estate of the devisor therein, unless it shall clearly appear by the will that the devisor intended to convey a less estate.

2. A devise was, “To my beloved wife, Editha J Dawson, I give and bequeath all my estate, rea, and personal, of which I may die seized, the same to remain hers, with full power, right, and authority to dispose of the same as to her shall seem most meet and proper, so long as she shall remain my widow, upon the express condition, however, that, if she shall marry again, then it is my will that all of my estate herein bequeathed, or whatever may remain, shall go to my surviving children, share and share alike,” etc. Held, that under the statutes of this state a conveyance of such real estate by Editha J. Dawson, after the death of the testator, and before her remarriage, conveyed the fee to such realty, and her subsequent marriage did not affect the title to the same.

3. The words, “or whatever may remain,” in the will, apply to both the real and personal estate, and are restricted to such part of the estate as remained undisposed of at the time of the second marriage of Mrs. Dawson.

4. When a testator devises all his estate, real and personal, giving his devisee the power of unqualified disposition of the property devised, the devisee may convey the legal title thereto; and a limitation over in a subsequent clause of the will, in favor of other persons, of “all of the estate herein bequeathed, or whatever may remain” at the marriage of the first taker, will not affect the titles previously conveyed.

5. Evidence of the situation of the parties may be received when it is necessary to a correct understanding of a bequest, together with the facts and circumstances which may reasonably be supposed to have influenced the testator in making the will, in order that the court may ascertain his motives and intention.

6. An attorney who sells real estate for his client, and represents the title to be good, which representation is relied upon, cannot thereafter assert title in himself to any real estate so sold.

Appeal from district court, Lancaster county; CHAPMAN, Judge.

T. M. Marquett, Harwood & Ames, and W. J. Lamb, for appellants.

O. P. Mason, J. M. Woolworth, and L. C. Burr, for appellees.

MAXWELL, J.

This action was instituted by the plaintiffs, 69 in number, against the defendants, to quiet the title to certain real estate in the city of Lincoln. Jacob Dawson was the common source of title, and the plaintiffs claim under his widow. The defendants claim under his children, and the determination of the case depends upon the construction of the will of said Jacob Dawson made on the 10th day of May, 1869. He died on the 18th day of June following, leaving surviving him his wife, Editha J. Dawson, and six minor children. The will, omitting the formal parts, is as follows: “After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath, and dispose of as follows, to-wit: To my beloved wife, Editha J. Dawson, I give and bequeath all my estate, real and personal, of which I may die seized; the same to remain hers, with full power, right, and authority to dispose of the same as to her shall seem most meet and proper, so long as she shall remain my widow; upon the express condition, however, that if she should marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, should go to my surviving children, share and share alike; and, in case any of my children should have deceased leaving issue, then the issue so left to receive the share to which said child would be entitled. I likewise make, constitute, and appoint my said wife, Editha J., to be executrix of this my last will and testament; hereby revoking all former wills made by me.” This will was duly admitted to probate, and the real estate belonging to the estate of Jacob Dawson was conveyed by the widow under the will. On the trial of the cause a large amount of testimony was taken in the case, which is preserved in the bill of exceptions now before us.

The court made the following findings: “The court finds first that the will executed by Jacob Dawson on the 15th day of June, 1869, and under and by virtue of which said Dawson disposed of said real estate in controversy, was intended to and did vest the full and complete title in fee-simple to said real estate in his widow, Editha J. Dawson, so long as she should remain single. (2) That said Jacob Dawson at the time of the making and execution of said will, and at the date of his death, was seized of very little personal property, and was possessed of practically no means aside from the real estate in controversy, and that it was the intention of said testator that the full and complete legal and equitable title to said real estate should vest in Editha J. Dawson, so long as she should remain single and unmarried, for the support and maintenance of herself and her children, who were minors at that time. (3) That said Editha J. Dawson sold and conveyed said real estate for a full and valuable consideration to plaintiffs and their grantors, receiving the consideration money so paid for said real estate for the use of herself and her minor children, and that said proceeds were so used. (4) That the several plaintiffs in said petition named, as their interests appear at the date of the trial of this cause, are entitled to the relief as prayed for in their said bill.” Of the same date, but said to have been dated back, we find the following additional findings; the individual names of the plaintiffs and defendants being given in the title of the judgment: “Now, on this 14th day of December, 1887, this case coming on further to be heard, and the court having duly considered the pleadings and testimony therein, and listened to the argument of the counsel, and having been duly advised in the premises, doth find, all and singular, the issues joined in said action in favor of the plaintiffs, and the allegations of the plaintiffs' petition to be true, and doth further especially find: (1) That the will set forth in the pleadings in said action, executed by Jacob Dawson on the 15th day of June, 1869, and by virtue of which said Dawson disposed of his said real estate in controversy herein, was intended by said Dawson to convey and deed, and give a full title in fee-simple, to said real estate, to his widow, Editha J. Dawson, so long as she should remain such widow, with full and lawful power and authority to sell and convey the same during her widowhood. (2) That said Jacob Dawson at the time of making and execution of said will, and at the time of his death, was seized of very little personal property, and was possessed of practically no means aside from the real estate in controversy, and that it was the intention of said testator that the full and complete legal and equitable title to said real estate should vest in said Editha J. Dawson, so long as she should remain single and unmarried, for the support and maintenance of herself and children, who were minors at that time, with full power and authority to sell and convey the same in fee-simple during her said widowhood. (3) That said Editha J. Dawson sold and conveyed said real estate for a full and valuable consideration to the plaintiffs below named, and their grantors, receiving the consideration money so paid for said real estate, for the use of herself and her minor children, for their support, nurture, and education, and that said proceeds were in fact so used. (4) That the said several plaintiffs below named, as their interest appears at the date of the trial of this cause, are respectively entitled to relief as prayed for in their petition herein. To each of which findings defendants severally except. It is therefore considered, ordered, adjudged, and decreed by the court here that the said defendants, and each and all of them, and all persons claiming through or under them, or any of them, or acting, or assuming to act, by the authority or with the connivance of defendants, or any of them, be, and are hereby, perpetually restrained and enjoined from in any manner, by suit, action, or proceeding, by law or in equity, in the courts of this state, or in any other courts, assailing or traducing or questioning the title or possession, or right of possession, of Samuel W. Little to the premises in the amended petition described; that is to say,” (describing the lots.) The court then proceeds to describe the property to which each plaintiff is entitled, and rendered a decree as prayed in the petition. The defendants object in their brief to this latter finding and judgment, but, as we find them signed by the judge who tried the cause, they are properly in the record. The defendants appeal.

The will in question was construed by the supreme court of the United States in Giles v. Little, 104 U. S. 291, and it was held that the will merely conferred an estate upon Editha Dawson during widowhood, and, in case she married again, the remainder in fee passed to his children. The words in the will, “or whatever may remain,” were construed as applying alone to the personal estate, and did not affect the realty. The decision is based on the prior one of Smith v. Bell, 6 Pet. 68. At common law, in order to devise lands to another in fee, it was necessary to use words of inheritance, or equivalent words, showing an intention to give such estate; and a mere devise of real estate without words of inheritance gave the devisee only a life-estate. “The proper and technical mode of...