Rona v. Meier

' l. will: limitiitioii * rcpus* nancy. It is very apparent from the terms of the will that the testator intended to give to his wife an absolute estate in the property bequeathed to her. Stronger language Jr ¿ j. & o o to express this intention could scarcely be employed. The will declares: “By this bequest I mean and intend that the property, of whatever kind, of which I shall die seized or possessed shall become as fully, and to all intents and purposes, the property of my said wife as the same shall have been in me, with full power to dispose of the same, and to appropriate the funds thereof, without let or hindefance,'as she shall deem proper.” The precatory words contained in the will, expressing a desire and request that the wife shall dispose of the property in a certain manner, which shall remain at her death, do not affect the absolute character of the bequest. See Hess v. Single, 114 Mass., 56; Gilbert v. Chapin, 19 Conn., 342. There can be no question, it seems to us, that Sophia Shrader might by will or deed properly executed have disposed absolutely of this property. Indeed we do not understand the plaintiffs to controvert this position. The view of plaintiffs is that the deed executed by Sophia Gutz (formerly Schrader) *610was procured by fraud and improper influence, Sopliia Gutz being of unsound mind; that no proper disposition of the property was made by Sophia Gutz during her life-time, and that the plaintiffs take the property under the dispositions made in the will, in case the said Sophia should die without having disposed of the property. This brings us to a consideration of the effect to be given to this part of the will. It is fully settled by authority that if the first taker has the power, by the terms of the will, to dispose of the property, he must be considered the absolute owner, and any limitation over is void for repugnancy. Flinn v. Davis, 18 Ala., 132; Attorney General v. Hall, Fitz., 315; Jackson v. Bull, 10 Johnson, 18; Ide v. Ide, 5 Mass., 500; Helmer v. Shoemaker, 22 Wendell, 136; Janretche v. Proctor, 48 Pa. St., 466; Bacon v. Woodward, 12 Gray, 376; Norris v. Hinsley, 27 Cal., 439.

Appellees insist that if the provisions of the will be repugnant the last must prevail as expressing the subsecpient thought or purpose of the testator, eating 2 Parson’s on Contracts, p. 26; Sims v. Doughty, 5 Wis., 247; Covenhoven v. Shuler, 2 Paige Ch., 122; Johnson v. Mayne, 4 Iowa, 180. Whilst this principle doubtless applies usually, it cannot be allowed to overthrow the well settled doctrine of the cases above* referred to. The plaintiffs claim solely under the will, and not as the heirs of Sophia Gutz. They have no interest in the property, and cannot complain of any invalidity in the deed from Sophia Gutz to the defendants. It follows that it is not necessary, perhaps not proper, to inquire into the validity of that deed.

The petition of plaintiffs should have been dismissed.

Reversed.