FEDERAL REPORTER,' vol.
she fanereby authorized and empGWEll'ad to sell and convey,the same, and in,vesHhe thereof in another homestead or in intere/lt·bearing securi· tiell.an4ha:vethe use of said proceeds of sale during her, natural life, un· less she' should' remarry. at which time IIhe shall forfeit all right thereto. In' case of ,her remarriage or death. It Is my will that all my estate personal ,that may remain unexpended py,my wife, as also my real estllte. or the proceedsthereof, in case the same shall have been sold and conveyed, and the proceeds reinvested as aforesaid,: ... * * shall be equally divided among the children:ofmy brothers of full blood. It Held. that the wife took the per· power of disposition., sonalty
}3il1,for,an for High,foJ;' <,lefendants.
This iaa bill filed by complainant as administrator de bonis, neni will annexed df the estate of Dr. Jehiel H. Hyde, to' compel nna6'ciJpnting from defendantS.for certain moneys alleged to be" now in the, possession or control of the defendants. long to said! Tliematerialft;l.cts, as they appear from the and proofs, are: Dr. Hyde died1at 'Lancaster in Granteounty ,Wis. ,on the 7th of December, 18M, leavipgawilI 20, 1869jby which he devised of his debts, to his wife, all his rel1Fand't'ersona1 estate, Sarah Hyae' tb'have and to hold during her natural life, namingAddi. The will wasdulrprobated hi GrantcountY,Wis., which was 'the domicile of the by the executor named therein, and letters Wlij;8;Il+entary issued 'to him in January,' 1870; and On the finalsettlemeht' of the accounts of the executor on the 12th of August, 1872:, therer$nained in hie hands, after payment of debts and legacies, the s.um of$7I,313.61 inmo,n,ey or securities, which he, by the order of the court! the of Mrs. Sarl1h Hvde, 'the widow of the testator; pursuant to of the will. The only real estate belonging fu'tbe'testator seertlstolillVe. been his homestead, situated in 'town' and this the widow occupiedj either by'leasing' Wa.nd receiviritthe rents, or by residing therein, and no question arises' iii this case ilueference to the real estate. Dr. Hydeleftno child or) children, but he and his wife ha'll taken into their 'family, :when quite' young, a niece of Mrs. Hyde, who was supported and educated by them as a foster-child, and who is one of the defendants in this case, she having married the other defendant, C. Stoddard Smith, a few months prior to Dr. Hyde's death; and after the death of the testator, Mrs. Hyde lived, most of the time until hlY' own death, with the Smiths. After the death of Dr. Hyde, Mrs. Hyde gave to the defendant Mrs. Julia Smith the sum of $1,000 td ll.idJ her in buying'a'lot -on which to"build a house in Springfield, Ill. " The proofs also show that Smith receiv,ed frOm .to sums ofmoney aU,to abouU500, or between four and five hundl'ed'dolla.I'8.":Some time ab9ut the 'middle of August, 1879, the money Hyde from her hushlibd's estate had, been reduced to the sum of $5,000, which had been ;loaned to one T. M, Barber;, for which she had received as security the deed of a farm in Grant county,
S(:HRElNER !II. BMI'XH.
Wis., but Barber,became. tq,.pay alld Mrs. Hydee:8:p.eoted to be obliged to the farm in satisfaction of bet; loan. She was very anxious, to return t04tllcaster to .reside there the rest of her life, and that the Smiths,who lItt that time were liYingin Orange, New Jersey, should go there with her, so that sheoould live with them, and be among her old friends and neighbors; and to ind uce :Qr. Smith to change his business plans and return to Lancaster she proposed to deed to him the Barber farm, for which the Smiths were to pay her the sum of $400 per annum, and allow her to have her home intheir (""roBy, if she chose to do so. This proposition was acoepted by the Smiths, and an agreement in writing to that effect executed between the parties" and a deed made by Mrs. Hyde to Mrs. Smith of the Batber farm, and soon afterwards the Smiths arid Mrs. Hyde ,returned to Lancaster. where they lived in the old homestead until after the death of Mrs. Hyde, they paying her the $400 each year, and she living in their family ·. after the return to Lancaster some disposition Wall made of the Barber farm so that the $5,000 loan was paid, llnd Mrs. Hyde, as the deed to Mrs. Smith had never been put on record,reconyeyed the farm to Barber, or his assigns, and the $5,000 went into the hands of the Smiths, and has>from that time forward. been treated as their own. The proof also shows;that after the return to Lancaster, and after the payment of the money loaned to Barber by Mrs. Hyde, the first agreement between Mrs. Hyde and the Smiths was canceled and a .new agreement at ".bout the time this Barber loan was paid, whichnRs I gather fl'OlfD the testimony, substantially embodied the terms of the old agreement, though, perhaps, with less minuteness of recital of circumstances. Complainant now claims that he is entitled, as administrator de bonis nOn of Dr. Hyde, to receive from the defendants. all the money they have received from Mrs. Hyde since Dr. Hyde's death; that is, the $500 given .Mrs. Smith by Mrs. Hyde in small sums from time to time, the $1,000 given her to help buy the lot for a house in Springfield, and the $5;000 received ftQm the Barbel' loan; while on the part of the defendants it is contended that the will of Dr. Hyde gave Mrs. Hyde full power of disposition of the persOlial property belonging to the estate, and that her dispof1ition of these sums of money is final, and cannot in any way be challenged by the complainant. As to this $500 item, the proof shows that $225· of it was the proceeds of a pianQ which Dr. Hyde had in his life-time, given to Mrs. Smith \;>efore her marriage, and which he had, however, sold, telling herat the time he sold it that she should either have the money or a .new piano, and Mrs.Hyde, in recognitioll of the claim of Mrs.f?mith to the proof thepian(), had paid her the sum on that account. T};¥l balance of this $500 item, I have no doubt frop! the proof, ,,'as a part of the income which Mrs. Hyde received lUoney which she har,l loaned out, .and was givep undoubtedly as presents to Mrs. SJ;nlth,. who. stood in the relation of a dauglIter to her. She was making ,her home witb the Smiths, and these presents seem to hl;LV& .beenthe only attempt f91' their. kindness and hospitality to her. paid, frOm,
the income of the money paid over to Mrs. Hyde by the executor, I have no .doubt that it was rightfully paid by Mrs. Hyde, and can in no sense be considered any part of the residuary estate. As to the $1,000 given to buy the lot in Springfield, the proof shows that it was given Mrs. Smith in 1874. No note or writing of any kind obligating Mrs. Smith or her husband to repay it was ever taken, and I think it clear from the proof that Mrs. Smith oonsidered it a gift from her aunt and foster-mother, and both parties so treated it; but, whether a gift or not, all right of action in regard to this item is, I think, barred by the statute of limitations, as it was received over 11 years before Mrs. Hyde's death. The main cOntention, however, in the case is in regard to the$5,000 constituting the Barber loan, and which Mrs. Hyde gave to the Smiths in consideration of their her $400 per annum during her natural life. -The complainant's right to this, and also to the other sums claimed, depends upon the construction to be given to the will of Dr. Hyde. Complainant contends that the will only gave Mrs. Hyde a lifeestate in the money and personal property of the testator, while, as I have said before, it is <contended on the part of defendants that the will clothed Mrs. Hyde with full power to dispose of the personalty, and that the will does not give Mrs. Hyde'B. mere life-estate in the personalty, with the remainder over to the residuary legatees. .The clauses of the will material to the question are: ic(2) I give, devise, and bequeath to my wife, Sarab Hyde, all of my estate; real and personal, to bave and hold during her natural life, unless .she should again marry. in. WhiCh case she shall. thereafter forfeit all right to said personal estate that may remain, andall right to the real estate or the proceedS thereof; * * '!' the personal estate. beforeSlich remarriage, she may pose of as ber necessities may require, or asher judgment may dictate to be rightlmd expedient. In case it should at any time be deemed ofpeculliary advantage to sell my homestead, she is hereby authorized and empowered to sellandconvey·the ·same, and invest tbe proceeds thereof in another homeIltead or in interest.bearingsecnrities, and have the use of said proceeds .of all-Ie duringo.l:!erJ;laturai life,unlesssne should remarry, at whicb .timeshe l!!\J:lI-ll forfeit all right thereto. In case of her remarriage or death, it is my will that all my estate personal, that may remain unexpended by my wife, as also· myfEial estate; or the proceeds thereof, in case tlte same s11all have bliJen· sold and conveyed and the proceeds re-invested as aforesaid, * * * shall' be equally divided among the children of my brothers of full blood." Complainant insists, 'as I have al·read'y said, that this will only clothed Mrs.. Hyde with a life-estate in the personalty, with the remainder over, atner death or remarriage, to the residuarylegatees and relies for this Golder v. IiittleJohn.30 Wis. 344; Janes v. Janes, 66' Wis. 310; 28N. W. Rep. 177; Brant v. Iron 00., 93 U. S. 326; I!fdllly v: Westcott, 13 Ves. 445; Smith v. Bell, 6 Pet. 68; and Giles v. Little, 104 U. S. 291. It is sufficient, I think, to say that neither of the wills' inconti'oversy in these cases contains the peculiar phraseology adopted by the testator in this case. Neither of these wills gave any right of disposition to the widow Of 'legatee for life, but simply gave what the c(Jurt considered to be'ainereliJe-estate in the personalty, with strict remainder
SCHREINER ". SMITH.
over to the residuary legatees. In this case, the will gives to Mrs. Hyde the right to dispose of the personalty "as her necessities may require, and as her judgment may dictate to be right and expedient." And this clause seems to me to clothe Mrs. Hyde with the full power of disposition of the perSonalty, so that any disposition which she makes of the personalty during her life-time is absolute and binding upon the residuary legatees. Not only does the clause which I have just quoted in express terms give this right of disposition, but the clause in regard to the residuary, disposition of the estate is: "It is my will that all my estate personal that may remain unexpended by my wife, as also my real estate, shall go to the residuary-legatee;" clearly showing an intention on the part of the testator to give an absolute right of disposition of the personalty to Mrs. Hyde, and that only so much of it as remained ab.. solutely unexpended, or, as you may say, undisposed of, should go to the residuary legatees. So, too, I think much force is given to the construction which I am disposed to give to this will, from the manner in which he provides for the use of the real estate, which is that, in event that Mrs. Hyde should see fit to sell the homestead, she was "authorized and empowered to do so, and invest the proceeds thereof in another homestead, or in interest-bearing securities," and to have the use of such proceeds of sale during her natural life; thus clearly showing that there was a definite intention in the mind of the testator to give Mrs. Hyde only a life-estate in the homestead, or in the ,proceeds of the homestead, if sold, while the language in regard to the personalty, in marked contrast,. clothes her with full disposing power. The will under consideration is, in the partiCUlars now in question, much more analogousto the will construed in Williams v. Pounder, by the high court of justice, 'chancery division, in England, as reported in 19 Chi. Leg.N. 247; where the language of the will was:
"1 give all the residue of my estate and effects '" '" '" unto my 'said wife, for her own, absoute use, and benefit. and disposal; '" * * and in case, at the time of the of my said wife, all, or any part. or parts of the said residue '" '" * shall remain undisposed of by my said wife, ... '" '" unto my said brother," etc.
In construing this will the court said:
"I must read the codicil as conferring a life-estate on the wife, together with the power of disposition, and in default of the exercise of that power, gives.over what remains at her death. to other persons. '" '" * Ith\nk that the testator intended to give her the power of disposition by act inter vivos. "
neou81y ,with' this agreement; by which providedJor the payment of this $400 per apnum out of her estate, in case of her death before the death, of MrlkHyde. At the ,time thisagreeQlent was made,Mrs. Hyde was between' 60 and' 70 years old. She was liable to live yet many years, and at the same thne liable to die, within a short time. The Smiths took all the chances of a long life, or a possible short continuanceof her life, and bound .themselves to pay her this annuity of $400 per year. It was a natural arrangement for an old lady,situated as she was,to make. bhe had been unfortunate in the loan to Barber, and was subjected to greai vexation, annoyance, and inconvenience by reason of Barber's failing to pay his interest. Her relations to Mrs. Smith were such that she felt confident that Mrs.. Smith would see that she was provided for; that she had her annuity, and was exercising a judicious caution in not binding herself to be at all times a member of the Smith family, but 'provided for an annuity, with the privilege of living in the family if she chose to do so, thereby leaving herself free to live elsewhere, and enjoy her income, if oircumstancesshould afterwards make it more desirable for her to do SQ. I .may also add in raga,.rd to the gifts made by Mrs. Hyde to Mrs. Smith that, even if these cannot be supported upon the grounds on which I have already disposed of them,they clearly come within the disposing power fJf the will, and evidently, if the $1,000 claim is not fully answered by. the statute of limitations, by reason of its being trust funds, or for apr other reason, it WaR clearly within the power of Mrs. Hyde to dispose of this money as she did. She ,was interested in'Mrs. Smith as her foster-daughter; was making her home with her. It was desirable that Smith should have a home, and Mrs. Hyde saw fit in her "judgment" to contribute to the purchase of the home for her. With this view of the true construction to be given this will, I must dismiss the bill for want of equity.
UNITED STATES V. PURDY
(D(8trict Oourt, S. D. Ohio, W. D. April 25, 1889.) 1.
Under Rev. St. U. S. § 4707, providing that if a soldier has died entftled to a pension,'and leaves neither widow nor minorchlldren', his mother, father, or orphan brothers and sisters, if dependent on him at the time of his deMh, shall be en,titled to the pension, a mother is dependent, upon her son wilen ,. she requires fOIl her support the use of a farm in which he has an interest as
8. SAME. . . The mother would be entitled to support according to' she had been accustomed to live. '.
" SAME. '
style in which . . ,
Though. the mother, a widow, had some money of her own invested. she was not bound to u,se the capital for her support.· She could be depepdent upon the &0.0., within the meaning of the statute,and still keep her money a,t interest, using the income for her support as far as it would g·o.