Hemhauser v. Decker

Louis Hemhauser, of the city of Newark, died on or about' January 14th, 1884, seized of real estate there. He left a widow and eight children. She and they are the complainants in this-suit. By his will he provided as follows:

“ 1. It is my will, and I do order that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease.

“ 2. I give and bequeath to my beloved wife, Theresia, all my real estate and' all my personal and movable .property, be the same situated, lying and being wheresoever it may be found, for her use and benefit for her lifetime and during her remaining widow, with the privilege to sell and dispose of the same at her own free will, but only during her said widowhood, and also in case of *428necessity to borrow money on said property in her name during the said term of her widowhood, and for this, and all the benefits arising therefrom, she, my said wife, Theresia, shall have the duty to give a good citizenlike education and learning to our remaining minor children, and to act in good understanding with the hereinafter named guardians, executors &e.

“3. Tn case my wife, Theresia, should marry again, then it is my will, and I do order, that only her part which the law gives to her shall be all she can receive out of the hereditament!

“4. In such case as said herebefore in article 3, my hereinafter-appointed guardians &c. may take possession of the hereditament coming to my said minor children, put the same in a good banking institution, bearing interest, and to use the same for the further education of my said minor children, until their full age.

“5. In case my wife, Theresia, remains widow, and in case of her death as widow, it is my will, and I do order, that all my real estate and movable property be sold by my hereinafter-named guardians, executors or administrators, and divided between my children, to them in equal shares, part and part alike, with the only provision that my wife, Theresia shall have the privilege to [dis] inherit every of my said children who is opposite to her, of bad character or unrulesome.

“ 6. I hereby appoint my friends, Charles Hook and John Decker, to be and act as guardians during the said minority of my said children, and also to act as executors and administrators of this my last will and testament.

“ 7. It is my will and understanding that after the death of my wife, provided as in said article 5, the whole hereditament be divided between all my children, in equal parts, share and share alike.”

The bill is filed against one of the two executors, the only one *429who proved the will. The other renounced. The question submitted for decision is, whether the widow (who is still unmarried)' has power to sell the. real estate in fee. By the second section of the will, the testator gives to her the use of all his property, real and personal, during her widowhood, “ with the privilege to sell and dispose of the same at her own free will, but only during her said widowhood; and also in case of necessity to borrow money on said property in her name during the said term of her widowhood; ” and adds “ for this and all the benefits arising therefrom, she, my said wife, Theresia, shall have the duty to give a good citizenlike education and learning to our remaining minor children, and to act in good understanding with the hereinafter-named guardians, executors &c.” Here is, undoubtedly, a power of sale, the exercise of which is confined to the widowhood of the donee. The only question to be considered is as to what is the estate or interest which she is thus authorized and empowered to sell. The testator did not intend to limit it to her own estate for her widowhood. Such an estate would obviously be of but little value. The same may be said as to the power to mortgage. No loan of any considerable amount could be effected on a mortgage of the widow’s estate during widowhood. If the limitation in question applies only to the time within which the power is to be exercised, then there is no ground *430whatever for claiming that the widow is limited as to the estate to be sold or mortgaged. To enable the donee of a power to convey a fee, it is not necessary, when it appears that the donor intended to authorize such grant, that he should specify the estate; it is enough if the power be merely a power to sell. “ Where,” says Sir Edward Sugden, “ the intention is clear, a power may enable the donee to dispose of the fee, though no words of inheritance be used, as where a testator gives a power to sell lands, the donee may sell the inheritance, because the testator gives the same power he himself had. 1 Sugd. on Pow. 501. There is nothing in the provisions of the will under consideration, subsequent to the grant of the power to limit the estate. Those provisions are intended to apply to the property if it should not have been conveyed, or to the proceeds thereof, if it should have been disposed of under the power, as the case might be. The will is clumsily drawn, and was drawn by a person but imperfectly acquainted with the English language, but it is clear, from its language and provisions, that the testator intended to give his widow power to sell the real estate in fee, provided she exercised the former during her widowhood, but not otherwise.