Matter of Fernbacher, deceased.

business in which I am now engaged, without change, so long as my wife Regina Fernbacher thinks best.

"Sixth. It is my will that my said wife Regina Fernbacher shall have power, and she is hereby authorized in her discretion to pay to all or any one of my children, at any time during her life, all or any part of the share or shares to which all or any one of my said children may be entitled in my real or personal estate under the second provision of this my last will and testa

ment.

"Seventh. I appoint my wife Regina Fernbacher executrix and Nathan Fernbacher and Samuel Abraham executors of this my last will and testament, with full power to sell, at public or private sale, at such times and upon such terms and in such manner as to them shall seem meet, in order that the terms of this my last will may be carried out, any and all of the real estate or personal property of which I shall die seized and possessed."

Although the testator left him surviving several children, it is claimed by counsel for the respondents, that after payment of debts and expenses of administration, the testator's widow, by virtue of the first clause above quoted from the will, acquired the absolute title to all the property left by her husband and to the proceeds of such portion thereof as had been or might thereafter be sold, either under the power given by clause first or under that given by clause sixth; and the respondents' counsel insists that if this contention is erroneous, and if the interest of the widow is to be considered as limited to a life estate, she nevertheless has at all times been authorized to exercise for her own benefit absolute "power and control" over the property of the estate, and by consuming the same if she saw fit so to do, to defeat the possibility of remainder to the children.

Neither of these propositions commands my approval.

The grant in clause first of "the same power of sale and control over said property," as the testator himself possessed, does not, when taken in connection with its immediate context, and with after provisions of the will, enlarge to a title absolute the

Matter of Fernbacher, deceased.

interest which is expressly given Mrs. Fernbacher for life, nor does it authorize either complete or partial absorption by her of the principal of the estate.

In support of the claim of the absolute character of the widow's interest and of the invalidity of the dispositions in behalf of the children, several cases have been cited by counsel. In these cases the well known principle has been recognized, that where a testator has made an unqualified bequest or devise, and has thus evinced his intention that the beneficiary should have absolute property in the thing given, a subsequent limitation over is void, because repugnant to the original disposition. Such is the doctrine of Helmer agt. Shoemaker (22 Wend., 137), Jackson agt. Robins (16 John., 538), Annin agt. Vandoren (14 N. J. Eq., 135), Downey agt. Borden (36 N. J. Law, 460), Stuart agt. Walker (72 Me., 145), Ide agt. Ide (5 Mass., 500), Paterson agt. Ellis (11 Wend., 259), Norris agt. Beyea (13 N. Y., 273, 286), Dutch Church agt. Smock (Sexton Ch. [N. J.], 148), Jones agt. Bacon (68 Me., 34), Campbell agt. Beaumont (91 N. Y., 464).

But I think it too plain for argument that, whatever may be the true construction of this will, the testator's widow has not acquired by the clause, now under discussion, such an absolute property in this estate as to invalidate the gift over. It is another question, however, whether she is limited to a bare life. estate, with the right to demand and enjoy nothing more than the interest and income of a principal that is to go to others at her death, or whether her life estate is coupled with a power on her part to receive such principal in her life-time, and to appropriate it wholly, or in part, to her own use, so that only such portion of it as may not, at her death, have been disposed of, will pass to the children under the second clause of the will.

Wright agt. Miller (8 N. Y., 9, 24), decided in 1853, was a case in which A. had conveyed to a trustee certain real estate with a power during A.'s life, and with A.'s consent, to lease or sell the same, and, after making certain disbursements from the proceeds, to pay over the balance "for the reasonable support and

Matter of Fernbacher, deceased.

maintenance of the grantor as she may require the same, and as to the residue thereof, if any there shall be, then upon trust," &c. The court of appeals held that the limitation over for the benefit of A.'s children was valid, the power of disposition retained by A. being limited to so much of the proceeds of the property as might be needed to defray the expenses of her reasonable support and maintenance during her life.

In 1872 the supreme court of New Hampshire in Burleigh agt. Clough (52 N. H., 267), held, that where a testator gave his wife all his estate "to her use and disposal during her natural life" with a gift over of "what is remaining at her decease," the widow took an estate for life, together with a power practically to defeat the estate of the remainderman, but that the gift in remainder was nevertheless valid as to anything that she might leave at her decease.

In 1875 our supreme court of the fourth department decided Bell agt. Warn (4 Hun, 406). A testator had bequeathed $1,250 to his daughter, providing that the same should be invested, and that the interest thereon should be paid to her during her life semi-annually, and that if, from sickness or want, there was need to resort to the principal for her support, the executors should do so, even to the exhaustion of the entire fund. The will further provided for a gift over of any portion of the $1,250 that might remain at the daughter's death. It was held that this gift over was good, though the life interest of the first taker was coupled with a power of disposing of the whole estate if such disposition should be needed for her maintenance.

In Terry agt. Wiggins ([1872], 47 N. Y., 512), a testator gave the residue of his real and personal estate to his wife "for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same, if she should require it or deem it expedient so to do." He authorized his executors to invest whatever residue there might be at her decease, &c. By a previous clause in his will, the testator had devised to his widow certain real estate "for her sole and absolute use and disposal." The court held that the terms first above quoted

Matter of Fernbacher, deceased.

were to be discriminated from those quoted later, and that the widow took only a life interest in the residue; the power of disposal not operating to enlarge her estate to absolute ownership, and simply enabling her to encroach upon the corpus of the estate for whatever might be necessary for her personal use and maintainance.

The language of a will construed in 1873 by our court of appeals, in Taggart agt. Murray (53 N. Y., 233), was as follows: "All my remaining property I give to my daughter, Cornelia, for her support and comfort, to be held and controlled by her, and at her death to pass to her heirs, or if she leaves no heirs, to be disposed of by her will to whom and for what purpose she deems right and proper." Held, that the testator intended a gift of life estate only, the power of disposition by will being superadded, limited, however, upon the event of the life tenant's leaving no heirs.

In 1876 the court of appeals in Smith agt. Van Ostrand (64 N. Y., 278), held that a testator's bequest to his wife of a certain sum of money "for her support during her natural life, "and his direction that, upon her death, the "said dower" should be transferred to his three children, when taken in connection with the following provision-"fifty dollars of the above named sum shall be paid her as soon as possible after my decease, and the remainder on or about six months after"-must be construed as a gift of so much of the principal fund as might be necessary for his widow's support and so much only; and that the gift of the remainder, subject to the exercise of the power, was valid and effectual.

Thomas agt. Pardee (12 Hun, 151), was decided in 1877. There a testator gave his wife all his estate, "to be possessed and used by her at her discretion and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount or increase and the residue left sacred to the purposes," &c. This was followed by a gift over of what might be left by the widow at her decease. She was declared entitled to draw principal and interest, so far as the

Matter of Fernbacher, deceased.

same might be necessary, for her support, but the gift over was sustained.

Flanagan agt. Flanagan (8 Abb. N. C., 413), was determined in 1880. By the will there construed a testator had given onethird of the residue of his estate to his wife "to be hers absolutely." He had also given her "the use of all the remainder during her life, and the portion left of such remainder to A. B., &c." It was held, that the words "left of such remainder" implied a right superadded to the rights of a life-tenant to make disposition of the principal, even to its complete exhaustion and the consequent defeat of the limitation over; but it was, nevertheless, held, that such limitation was a valid disposition.

From the cases above cited the case at bar can be clearly distinguished. I find in the language of the will before me nothing that warrants the interpretation that the widow of this testator is entitled to any portion whatever of the principal estate wherein she is given a life interest. By the first clause of the will, on the contrary, whether it is considered by itself or in the light of the remaining clauses, it seems to me that a life interest pure and simple is intended to be conveyed.

In the well known case of Bradley agt. Westcott (13 Vesey, 445), Sir William Grant, as Master of the Rolls, construed a will whereby a testator gave certain property to his wife "for and during the term of her natural life, to be at her full, free and absolute disposal and disposition during her natural life." The widow was also given a power of appointment. In default of its exercise there was a gift over to certain designated persons. The court said: "As the testator has given to her (his wife) in express terms an interest for life, I cannot, under the ambiguous words afterward thrown in, extend that interest to the absolute property. I must construe the subsequent words, with reference to the express interest for life previously given, that she is to have as full, free and absolute disposition as a tenant for life can have,"

In Smith agt. Bell (6 Pet., 68), where a testator had given his personal estate to his wife "to and for her own use and benefit