The children of the first marriage (appellees) contend that the widow took only a life estate with power to encroach upon the corpus only for her reasonable and necessary support, maintenance and enjoyment, if and when a court of equity found such encroachment to be necessary. Before the decision in Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, the rule was that where property is devised to one absolutely with unlimited power of disposition, and by a subsequent provision of the will the testator undertakes to devise whatever may be left of the property at the first taker's death, the limitation over is void and the first taker acquires a fee, Walker v. Butler, 284 Ky. 179,144 S.W.2d 210; Gwinn v. Gwinn's Adm'r. 287 Ky. 795, 155 S.W.2d 227. Appellant realizes the Hanks opinion changed this rule and held that if upon reading the will as a whole, it is ascertained that in making the devise over of the remnant it was the intention of teastor to limit the first taker to a life estate, such devise over or limitation is valid and a life estate is all the first taker acquires. However, she insists that as her husband died on April 9, 1948, she acquired a vested right under his will on that date which will not be disturbed under the Hanks opinion decided April 23, 1948, since it is stated therein that the change in the rule of such long standing is to be prospective and will not affect vested rights.
* * *" In our opinion, this case is very close to the case at bar. In Gwinn v. Gwinn's Adm'r, 287 Ky. 795, 155 S.W.2d 227, the will provided — "I hereby bequest — my belongings and property, both personal and real estate to my wife to use as she sees fit, and at her death all that is left to go to Gwinn heirs." The Court held that the will vested a fee simple title in the widow.
These appellants contend that, by virtue of the last quoted sentence of the will, they are now the owners of an interest in the real property devised to Catherine Watson and Toussaint Parard. Prior to our decision of April 23, 1948, in Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1, it was the rule in this state that where property is devised to one absolutely with unlimited power of disposition and by a subsequent provision of the will the testator undertakes to devise whatever may be left at the first taker's death, the limitation over is void and the first taker acquires a fee simple title, Walker v. Butler, 284 Ky. 179, 144 S.W.2d 210; Gwinn v. Gwinn's Adm'r., 287 Ky. 795, 155 S.W.2d 227. The Hanks case abolished this rule; however, as to any testator who died before April 23, 1948, that case is inapplicable. Stewart v. Morris, 313 Ky. 424, 231 S.W.2d 70. Chilton v. Meeks, Ky., 288 S.W.2d 350. Since testatrix died in 1940 the trial court correctly held that under the terms of her will the fee simple title had vested at that time and the appellants DeCourley and Parard have no remainder interest.
Prior to the case of Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, decided April 23, 1948, it was the settled rule in this state that where property is devised to one absolutely with unlimited power of disposition, and by a subsequent provision of the will the testator undertakes to devise whatever may be left at the first taker's death, the limitation over is void and the first taker acquires a fee. See case just cited and Walker v. Butler, 284 Ky. 179, 144 S.W.2d 210; Gwinn v. Gwinn's Adm'r, 287 Ky. 795, 155 S.W.2d 227. In the Gwinn case, the will was composed of one sentence, as in the instant case, and it provided: " 'I hereby bequest — my belongings and property, both personal and real estate to my wife to use as she sees fit, and at her death all that is left to go to Gwinn heirs.
" The will of W.J. Walters, with the provision as to the remarriage of the widow eliminated, is substantially the same as the will construed in Gwinn v. Gwinn's Adm'r, 287 Ky. 795, 155 S.W.2d 227. The will in that case read: " 'I hereby bequest — my belongings and property, both personal and real estate to my wife to use as she sees fit, and at her death all that is left to go to Gwinn heirs.
Again the court held that the widow took an absolute fee. In Gwinn v. Gwinn's Adm'r et al., 287 Ky. 795, 155 S.W.2d 227, the language of the will recited: "I hereby bequest — my belongings and property, both personal and real estate to my wife to use as she sees fit, and at her death all that is left to go to Gwinn heirs."
We have written many times that a devise to one "to do with as he pleases"; "to use any or all of said property or the proceeds from same as she shall desire"; "to have, to hold and to use as she may wish," vests in the devisee a fee simple title. In George A. Gwinn v. Haskell W. Gwinn's Adm'r, 287 Ky. 795, 155 S.W.2d 227, many authorities are cited on this subject and it is not necessary to again discuss it, but a mere reference to that opinion will suffice. The language before us devising the timber to Smith is "be sold by my son, Will M. Smith or worked by him, as he may deem proper for his own use and benefit."