Opinion
Decided November 16, 1925.
Wills — Construction — Gift in fee not reduced to lesser estate, when — Devise for use, with power to sell and remainder over — Life estate created with power to sell — Vested remainder, subject to be divested.
1. Gift of fee cannot be cut down except by language as clear as that granting fee.
2. Devise of property for use and benefit of another forever with express power to sell and dispose of it, and creating remainder over of anything left on her death, held to create a life estate with power and discretion of tenant to use part or all of it in her own judgment.
ERROR: Court of Appeals for Clermont county.
Messrs. Murphy Joseph, for plaintiff in error.
Messrs. Maxwell Ramsey and Mr. Gregor B. Moormann, for defendant in error.
Margaret A. Knicely and Ella May Knicely jointly purchased the property in question August 26, 1905. Margaret Knicely made a will June 26, 1915. She died November 25, 1923. Her will was probated December 23, 1923. Ella May Knicely died December 21, 1924. The executor under her will brought an action to sell the property to pay debts and bequests under her will.
Margaret A. Knicely, in the second paragraph of her will, used the following language:
"I give, bequeath, and devise to my beloved niece, Ella May Knicely, all my real estate and personal property for her own use and benefit forever. Except she pay to my brothers William J. Knicely, Alva Knicely, and sister Amanda one dollar each, when claimed by them, and I hereby appoint my niece, Ella May Knicely without bond, with full power to sell, mortgage, lease, or dispose of the whole or any part thereof of my real estate or personal property.
"At her death, should there anything remain of my estate, I bequeath it to the Old People's Home in Cincinnati."
The question is: Did Ella May Knicely take a fee or a life estate in the property?
The will gives the property for the use and benefit of Ella May Knicely, and expressly confers the power to sell or dispose of it. The language is: "I give, bequeath, and devise * * * for her own use and benefit forever." If it were not for the qualifying or limiting words, the gift would have been a fee in the estate, and the power of sale or disposition, subsequently added, would be surplusage. If a life estate was given, she had only the use of the property. But when to the gift the words "for her use and benefit" are added, coupled with the power to sell, etc., they will be held to mean that if she sold the property, and used the proceeds, the purchaser would take a good title, but that if she held and used the property, and died without having disposed of it, all her right and title to the property would end with her demise. The words of limitation are a part of the sentence making the bequest. It is clear that the testator intended to give the devisee a life estate, with the power and discretion to use part or all of it, as in her judgment was for her own use and benefit.
Counsel cite the case of Clark v. Clark, 13 Ohio App. 164, and other cases decided by this court, holding that where a fee to property is given it cannot be cut down except by language as clear as that granting the fee. The rule stated in those cases correctly states the law, and we here reaffirm it. But the facts in this case do not bring it within that rule. The qualifying words of the granting clause limit the gift.
On authority of Tax Commission of Ohio v. Oswald, Ex'x., 109 Ohio St. 36, 141 N.E. 678, and Johnson v. Johnson, 51 Ohio St. 446, 38 N.E. 61, and the authorities therein cited, our conclusion is that Ella May Knicely took a life estate in the property in question, with authority to sell or dispose of it for her own use and benefit; and that the gift over amounted to a vested remainder in the Widows' Home and Asylum for Aged and Indigent Women, subject to being divested in whole or in part by the exercise of the power of sale for her own use and benefit. But, as the power of sale was not exercised, the title to the property is now in the Widows' Home and Asylum for Aged and Indigent Women. See, also, Pool v. Napier, 145 Iowa 699, 124 N.W. 755.
The judgment of the court of common pleas will be affirmed.
Judgment affirmed.
BUCHWALTER, P.J., and HAMILTON, J., concur.