Under a will by which the testator devises and bequeaths to his
wife
"all my estate, real and personal, of which I may die seised,
the same to be and 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,"
the widow has power during widowhood to convey to third persons
an estate in fee simple in his lands.
Giles v. Little, 104 U. S. 291,
overruled, and
Little v. Giles, 25 Neb. 313, followed.
This was an action of ejectment, brought June 11, 1887, by
Walter F. Lewis against Artemas Roberts, in the Circuit Court of
the United States for the District of Nebraska, to recover
possession of six lots in the Town of South Lincoln, in the County
of Lancaster, and State of Nebraska. The circuit court gave
judgment for the plaintiff, and the case was taken by writ of error
to the Circuit Court of Appeals for the Eighth Circuit, which
certified to this Court the following facts:
On May 10, 1869, Jacob Dawson duly made his last will, which was
duly admitted to probate in 1869, after his death, and which,
omitting the formal parts, was as follows:
"After all my lawful debts are paid and discharged, the residue
of my estate, real and personal, I give and 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
seised, the same to be and 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 express
condition, however,
Page 153 U. S. 368
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."
At the time of his death, he had a perfect title to the lots in
controversy in this suit. On March 15, 1870, Editha J. Dawson
conveyed these lots by warranty deed to Paran England, who on
December 15, 1871, conveyed them by warranty deed to Roberts, the
plaintiff in error. On December 14, 1879, Editha J. Dawson married
Henry M. Pickering. On September 15, 1879, the children of Jacob
Dawson made a warranty deed of these lots to Hiland H. Wheeler and
Lionel C. Burr, and Wheeler and Burr afterwards made a warranty
deed thereof to Ezekiel Giles, who, in May, 1887, conveyed them by
warranty deed to Lewis, the defendant in error.
While the title in these lots was vested in Giles, as aforesaid,
he brought an action, claiming under that title, to recover another
lot in the same county which had belonged to Jacob Dawson at the
time of his death, against one Little, who claimed under a deed
executed by Editha J. Dawson during her widowhood. That case was
brought by writ of error to this Court, which held at October term,
1881, that, under the will of Jacob Dawson, his widow only took
"an estate for life in the testator's lands, subject to be
diverted on her ceasing to be his widow, with power to convey her
qualified life estate only,"
and that "her estate in the land, and that of her grantees,
determined on her marriage with Pickering."
Giles v.
Little, 104 U. S. 291.
After that decision, but whether before or after the aforesaid
deed from Giles to Lewis did not appear, a suit was brought in the
District Court of Lancaster County, by various grantees of the
widow, against Giles, to quiet their title against the title
claimed by Giles under the aforesaid deed from the
Page 153 U. S. 369
children of Jacob Dawson, and was taken by appeal to the Supreme
Court of Nebraska, which held that the will of Jacob Dawson, under
the statutes of the State of Nebraska, enabled his widow, prior to
her remarriage, to convey an estate in fee simple in any of the
lands whereof her deceased husband had died seised.
Little v.
Giles, 25 Neb. 313.
Upon these facts, the circuit court of appeals duly certified to
this Court the following questions or propositions of law:
"First. In determining the nature of the estate that became
vested in said Editha J. Dawson under said will of her deceased
husband, Jacob Dawson, in and to lands situated in the State of
Nebraska, whereof said Jacob Dawson died seised and possessed,
should the circuit court of appeals be governed by the decision of
the Supreme Court of the United States in
Giles v. Little,
104 U. S.
291,
104 U. S. 300, or by the
subsequent decision of the Supreme Court of the State of Nebraska
in
Little v. Giles, 25 Neb. 313, 334?"
"Second. Did the aforesaid will of Jacob Dawson vest his widow
with such an estate in lands whereof the testator died seised,
situated in the State of Nebraska, that during her widowhood she
could convey to third parties an estate in fee simple therein?"
"Third. Should the construction of the will of Jacob Dawson,
deceased, which was adopted by the Supreme Court of the United
States in
Giles v. Little, 104 U. S.
291, be adhered to by the United States Circuit Court of
Appeals for the Eighth Circuit in determining the right of Walter
F. Lewis in and to the property heretofore described, in view of
the fact that said Walter F. Lewis purchased said property
subsequently to the promulgation of said decision in
Giles v.
Little and prior to the decision of the Supreme Court of the
State of Nebraska in the case of
Little v. Giles, 25 Neb.
313? "
Page 153 U. S. 375
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
This certificate distinctly presents for decision the question
(argued, but not decided, when this case was before this Court at a
former term, reported in
144 U. S. 653), of
the construction of the will of Jacob Dawson, the material part of
which was as follows:
"To my beloved wife, Editha J. Dawson, I give and bequeath all
my estate, real and personal, of which I may die
Page 153 U. S. 376
seised, the same to be and 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."
By the statutes of Nebraska,
"every devise of land in any will hereafter made shall be
construed to convey all the estate of the devisor therein which he
could lawfully devise, unless it shall clearly appear by the will
that the devisor intended to convey a less estate,"
and "the term
heirs,' or other technical words of
inheritance, shall not be necessary to create or convey an estate
in fee simple." Nebraska Comp.Stat. c. 23, § 124; c. 73, §
49.
In the opinion delivered by this Court in a former case between
different parties, and concerning other land, the second of those
sections was not referred to, and the first was imperfectly quoted
(omitting the word "clearly" before "appear"), and was treated as
of no weight, and it was held, reversing the decision of Judge
McCrary in
Giles v. Little, 13 F. 100, that by the true
construction of the will the widow
"took under it an estate for life in the testator's lands,
subject to be divested on her ceasing to be his widow, with power
to convey her qualified life estate only,"
and that "her estate in the land, and that of her grantees,
determined on her marriage with Pickering."
Giles v.
Little, 104 U. S. 299,
104 U. S. 300.
The Supreme Court of Nebraska, in a subsequent case, considered
those sections of the statute as controlling the construction of
the will, and making it clear that the widow took an estate in fee.
Little v. Giles, 25 Neb. 321, 322. That court was also of
opinion that the gift over to the children passed only that portion
of the estate, real or personal, not disposed of by the widow
during her widowhood, and, upon the whole case, concluded
"that the intention of the testator was to empower his widow to
convey all of his real and personal estate, if she saw fit to do
so, and, as she had exercised this right and power before her
remarriage, the
Page 153 U. S. 377
grantees under her deeds acquired all the title of the testator
to such lands."
25 Neb. 327, 328, 334.
The opinion of the supreme court of the state appears to have
been formed upon full consideration of the difficulties of the
case, and is entitled to great weight, especially upon the
construction of the statute of the state.
Suydam v.
Williamson, 24 How. 427. And this Court, on
reconsideration of the whole matter, with the aid of the various
judicial opinions upon the subject and of the learned briefs of
counsel, is of opinion that the sound construction of this will as
to the extent of the power conferred on the widow, is in accordance
with the conclusion of the state court, and not with the former
decision of this Court, which must therefore be considered as
overruled.
The testator's primary object manifestly was to provide for his
widow. He begins by giving her "all my estate, real and personal,"
which, of itself, would carry a fee unless restricted by other
words.
Lambert v.
Paine, 3 Cranch 97. He then says, "to be and remain
hers," which, upon any possible construction, secures to her the
full use and enjoyment of the estate while she holds it. She is
also vested in the most comprehensive terms
"with full power, right, and authority to dispose of the same
[which, as no less title has yet been mentioned, naturally means
the whole estate] as to her shall seem most meet and proper, so
long as she shall remain my widow."
This last clause, so far as it controls the previous words, has
full effect, if construed as limiting the time during which the
widow may have the use and enjoyment of the estate, and the power
to dispose of it, and not restricting the subject to be disposed
of. The power thus conferred therefore in its own terms, as well as
by the general intent of the testator, gives her, during widowhood,
the right to sell and convey an absolute title in any part of the
estate, for it would be difficult, if not impossible, to obtain an
adequate price for a title liable to be defeated in the hands of
the purchaser by the widow's marrying again.
That the power was intended to be unlimited in this respect
appears even more distinctly by the terms of the next clause,
Page 153 U. S. 378
by which, if she should marry again, the testator declares it to
be his will that "all of the estate herein bequeathed, or whatever
may remain, should go" to his surviving children. By not using the
technical word "remainder," or making the devise over include the
entire estate at all events, but carefully adding, after the words,
"all the estate herein bequeathed," the alternative, "or whatever
may remain" (which would otherwise have no meaning), he clearly
manifests his intention to restrict the estate given to the
children to whatever has not been disposed of by the widow, and
there is nothing upon the face of the will, nor are there any
extrinsic facts in this record, having any tendency to show that
the power of the widow is less absolute over the real estate than
over the personal property.
The cases of
Smith v. Bell,
6 Pet. 68, and
Brant v. Virginia Coal Co., 93 U. S.
326, relied on in support of the opposite conclusion,
involved the construction of wills expressed in different language
from that now before the Court.
In
Smith v. Bell, the testator bequeathed "all his
personal estate," consisting principally of slaves, to his wife,
"to and for her own use and benefit and disposal, absolutely, the
remainder of said estate, after her decease, to be for the use of"
his son, and the decision was that the wife took a life estate,
only, and the son a vested remainder. The wife had made no
conveyance of the property; the words of the gift over were the
technical ones, "the remainder of my estate," appropriately
designating the whole estate after the wife's death, and the court
distinctly intimated that if the will were construed as giving the
wife "the power to sell or consume the whole personal estate during
her life," a gift over of "what remains at her death" would be
"totally incompatible," and "void for uncertainty." 6 Pet.
31 U. S. 78. But
in the case at bar, the gift over is, in express terms, of
"whatever may remain." If the intent expressed by these words can
be carried out, the children take only what has not been disposed
of. If the clause containing them is repugnant and void, the view
of the Supreme Court of Nebraska that the widow took an estate in
fee is fortified.
See Howard v. Carusi, 109 U.
S. 725;
Potter v. Couch, 141 U.
S. 296,
141 U. S.
315-316.
Page 153 U. S. 379
In
Brant v. Virginia Coal Co., the bequest which was
held to give a life estate, and no power to convey a fee, was only
of the testator's estate, real and personal, to his wife, "to have
and to hold during her life, and to do with as she sees proper
before her death." 93 U.S.
93 U. S. 327.
The numerous cases cited in the briefs have been examined, and
show that the general current of authority in other courts is in
favor of our present conclusion, but, as they largely depend upon
the phraseology of particular wills, it would serve no useful
purpose to discuss them in detail.
It is express a positive opinion upon the question whether,
under this will, the widow took an estate in fee, for if she took a
less estate, with power to convey in fee, the result of the case,
and the answers to the questions certified, must be the same as if
she took an estate in fee herself.
For the reasons above stated, this Court is of opinion that the
will of Jacob Dawson did give his widow such an estate in lands in
Nebraska, of which he died seised, that she could, during her
widowhood, convey to third persons an estate in fee simple therein,
and that the circuit court of appeals, in determining the nature of
the estate vested in her by the will in such lands, should be
governed not by the former decision of this Court in
Giles v.
Little, 104 U. S. 291, but
by the decision of the Supreme Court of Nebraska in
Little v.
Giles, 25 Neb. 313.
The result is that the first question certified must be answered
accordingly, that the second question must be answered in the
affirmative, and that the third question must be answered in the
negative, and that these answers be
Certified to the circuit court of appeals.
