come, "rents and profits,"27 "rents, income, and profits," "in"28 "net income, "29 "use, income, and control for life, ''80 "use and improvement," or "income and interest, '82 limited to the beneficiary for life, confers only a life estate. It must be remembered, however, that it is a general rule that a bequest of income of land is a devise of the land itself when there are no overruling words in the will establishing the contrary.33 This rule supplanted the old La. Ann. 209; Van Driele v. Kotvis, 135 Mich. 181, 97 N. W. 700. A gift of the proceeds of real estate for life vests a life estate in the realty itself.-Wilson v. McKeehan, 53 Pa. St. 79. 27 Handberry v. Doolittle, 38 Ill. 202; Nelson v. Nelson, 2 Ky. L. Rep. 63; Cooke v. Husbands, 11 Md. 492. 28 Thompson v. Schenck, 16 Ind. 194; Mayes v. Karn, 115 Ky. 264, 72 S. W. 1111; Stone v. North, 41 Me. 265; Hopkins v. Keazer, 89 Me. 347, 36 Atl. 615; Hooper v. Smith, 88 Md. 577, 41 Atl. 1095; Brombacher v. Berking, 56 N. J. Eq. 251, 39 Atl. 134; In re Vreeland, 66 N. J. Eq. 297, 57 Atl. 903; Durfee v. Pomeroy, 154 N. Y. 583, 49 N. E. 132; In re Nevins, 192 Pa. St. 258, 43 Atl. 996; Simmons v. Morgan, 25 R. I. 212, 55 Atl. 522. "The gift of the income to his daughters for life was equiv. alent to a devise to them of a life estate in the land."-Monarque v. Monarque, 80 N. Y. 320. 29 Mather v. Mather, 103 Ill. 607; Morrison v. Schorr, 197 Ill. 554, 64 N. E. 545; Hopkins v. Keager, 89 Me. 347, 36 Atl. 615. 30 Fogler v. Titcomb, 92 Me. 184, 42 Atl. 360. 31 Fay v. Fay, 1 Cush. (55 Mass.) 93. 32 Blanchard v. Brooks, 12 Pick. (29 Mass.) 47, 63. A devise of the proceeds of real estate for life vests a life estate in the realty itself.-Wilson v. McKeehan, 53 Pa. St. 79. A devise to the testator's widow, with directions that the property be kept together during her life for the maintenance of herself and the children, each of whom on coming of age is to receive such a portion of the property on hand as the widow may choose to give, confers upon the widow a life estate only.-Weir v. Smith, Tex. 1. 62 33 Mannox v. Greener, L. R. 14 Eq. 456; Smith v. Dunwoody, 19 Ga. 237; Sampson v. Randall, 72 Me. 109, 111; Brombacher v. Berking, 56 N. J. Eq. 251, 39 Atl. 134; Perry v. Hackney, 142 N. C. 368, 115 Am. St. Rep. 741, 9 Ann. Cas. 244, 55 common law rule and is by virtue of statutes in the various jurisdictions. The reason for the rule is obviously that a use of income or rents necessarily includes the corpus of the realty. § 962. Gift of the Right of Use, Enjoyment and Occupation. A gift for life of the right to use, occupy, or possess named property vests in the devisee an estate for life.31 There is no substantial difference between a gift of real estate for life and a gift of the use of the same property for life. The distinction, if any, is in words and not in meaning, and the construction is the same.35 Thus a life estate is passed by a gift of a dwelling house and the use of all improvements for life;36 a testamentary gift of property to be enjoyed by the donee as long as he lives, and that no one shall have the power to prevent such enjoyment as long as it is his pleasure to continue the same, creates a life estate.37 A devise of the use and occupancy of land does not, as a S. E. 289; Estate of Siddall, 180 34 Davidson v. Koehler, 76 Ind. 398; Rowe v. Rowe, 120 Iowa 17, 94 N. W. 258; Wilson v. Curtis, 90 Me. 463, 38 Atl. 365; Faxon v. Faxon, 174 Mass. 509, 55 N. E. 316; Austin v. Hyndman, 119 Mich. 615, 78 N. W. 663; Brendel v. Hansen, 127 Mich, 396, 86 N. W. 951; Reeve v. Troth, (N. J. Eq.) 42 Atl. 571; Place v. Burlingame, 75 Hun 432, 27 N. Y. Supp. 674; affirmed 149 N. Y. 617, 44 N. E. 1128; McKee v. McKee, (Tenn.) 52 S. W. 320; Nason v. Blaisdell, 17 Vt. 216. 35 Lewis V. Palmer, 46 Conn. 454. 36 Cochran v. Hudson, 110 Ga. 762, 36 S. E. 71. Where the will provided as follows: "I leave and bequeath all the property, movable and immovable of which I may die possessed, to my said wife; this legacy is made in usufruct and during the lifetime of my said wife, at her death the whole of which will revert to the children," etc., the widow took a life estate in the land.-Newman v. Willetts, 52 Ill. 98. 37 Crowley v. Crouch, 114 Ga. 135, 39 S. E. 904. general rule, restrict the use and occupation to the devisee personally, but it passes an estate in the property which he may let or assign.38 But a gift over, if the donee ceases to occupy a house, shows that the testator contemplated a personal use.39 § 963. Gift of a "Home" on Certain Property. 40 A will which provides that a devisee, during his natural life, shall have a home on a certain tract of land, creates a life estate in the property. If the direction is that the devisee shall have a home until otherwise provided for, the devisee takes a life estate determinable upon such provision being made. Where the will makes no direct gift to a beneficiary but only a devise in trust with the direction that the devisee shall "live on the property free of rent," only a life estate is created.42 Should the testator direct, in connection with a gift of the right to live in a designated home, that the beneficiary should enjoy the same privileges as he was enjoying at the date 38 Rabbeth v. Squire, 19 Beav. 70; Mannox v. Greener, L. R. 14 Eq. 456; Wilson v. Curtis, 90 Me. 463, 38 Atl. 365. Where the testator bequeaths all his property with the qualification that it is to be "used, enjoyed, and occupied" during the natural life of the legatee, nothing but the usufruct of the property is devised. Succession of Law, 31 La. Ann. 456. 39 MacLaren v. Stainton, 27 Law J. Ch. 442; Reeve v. Troth, (N. J. Eq.) 42 Atl. 571. 40 Willett v. Carroll, 13 Md. 459. 41 Williams v. Ratcliff, 42 Miss. 145. 42 Nevins' Estate, 192 Pa. St. 258, 43 Atl. 996. Where the parents of a beneficiary under a trust were given the privilege of a home for themselves and minor children so long as any female child of the mother was unmarried, a life estate was created in the parents.-Webster v. Brown, (Ky.) 72 S. W. 774. Where the testator provided that his unmarried daughters should not be deprived of a home on the property devised so long as they remained single, they had a right to live on the homestead but not to maintenance from the rents and profits.-Nelson v. Nelson, 19 Ohio 282. of the will, the extent of such privileges may be proved by parol in order to give effect to the gift.43 8964. Devise "During Widowhood," or "Until Marriage,' Confers a Life Estate. A devise of property to one who is unmarried, followed by a gift over in the event the devisee should marry, confers a life estate only determinable upon the marriage of the devisee." Estates which may extend during life but which must terminate at death, while they exist are life estates. Such is an estate by devise "during widowhood."45 A devise of real estate by a testator to his widow during her widowhood confers on her a life estate, subject to be defeated should she remarry.46 So a devise by a wife to her husband so long as he shall remain unmarried, gives him an estate for life, determinable should he again marry.47 A devise by the testator to his widow "during the term of her widowhood" means the same as "so long as she remains my widow," and implies a con 43 Maeck v. Nason, 21 Vt. 115, 52 Am. Dec. 41. 44 Furnish v. Rogers, 154 III. 569, 39 N. E. 989; Ridgely v. Bond, 18 Md. 433; Hankin's Estate, 4 Watts & S. (Pa.) 300. 45 Ga. Code, 1911, § 3665; Rose V. Hale, 185 Ill. 378, 56 N. E. 1073. 46 Evan's Appeal, 51 Conn. 435; Rose v. Hale, 185 Ill. 378, 76 Am. St. Rep. 40, 56 N. E. 1073; Levengood v. Hoople, 124 Ind. 27, 24 N. E. 373; Brunk v. Brunk, 157 Iowa 51, 137 N. W. 1065; Price v. Ewell, 169 Iowa 206, 151 N. W. 79; Clements v. Reese, (Ky.) 74 S. W. 1047; Mansfield v. Mansfield, 75 Me. 509; Fuller v. Wilbur, 170 Mass. 506, 49 N. E. 916; Mandle baum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Schminke v. Sinclair, 100 Neb. 101, 158 N. W. 458; Cooper v. Cooper, 56 N. J. Eq. 48, 38 Atl. 198; Dubois v. Van Valen, 61 N. J. Eq. 331, 48 Atl. 241; Miller v. Gilbert, 144 N. Y. 68, 38 N. E. 979; In re Brook's Will, 125 N. C. 136, 34 S. E. 265; Sink v. Sink, 150 N. C. 444, 64 S. E. 193; Nimmons v. Westfall, 33 Ohio St. 213; Appeal of Brotzman, 133 Pa. St. 478, 19 Atl. 564; Disley v. Disley, 30 R. I. 366, 75 Atl. 481; Seaboard Airline Ry. v. Garrett, 85 S. C. 543, 67 S. E. 903; Lane v. Crutchfield, 3 Head. (Tenn.) 452. 47 Stivers v. Gardner, 88 Iowa 807, 55 N. W. 516. tinuance of the estate during widowhood, but no longer, and can not extend beyond her life.48 A distinction, however, has been made where the language of the devise is to the wife and her heirs, or in words importing a fee, followed by the words "so long as she remains my widow." It has been said that the provision last mentioned was merely equivalent to saying, "provided she remains my widow," and instead of cutting down the estate in fee devised, merely attached a condition which made it defeasible upon marriage.49 But the weight of authority is that the entire will should be considered, and a limitation that the devisee shall hold the property only while she remains the widow of the testator or until she remarry, confers only a defeasible life estate.50 § 965. Creation of Estates by Implication. An estate in a beneficiary in certain property devised may be created by implication, there being no direct gift in his favor. The intention of the testator should control, to be gathered from the provisions of the will. The true rule to be followed in all cases is that the intention of the testator should be given effect provided it does not contravene any positive demand of the law or rule of public policy. No technical rule of construction should be blindly followed; such rules serve simply to guide the court and to indicate the probabilities in the absence of 48 King v. Phillips, 1 Houst. (Del.) 349; Rose v. Hale, 185 Ill. 378, 76 Am. St. Rep. 40, 56 N. E. 1073; Kearney v. Kearney, 17 N. J. Eq. 59; Crosby v. Wendell, 6 Paige Ch. (N. Y.) 548; Sink v. Sink, 150 N. C. 444, 64 S. E. 193; Craig v. Watt, 8 Watts (Pa.) 498; Seaboard Airline Ry. Co. v. Garrett, 85 S. C. 543, 67 S. E. 903. 49 Scott v. Murray, 218 Pa. St. 186, 67 Atl. 47. 50 Bennett v. Packer, 70 Conn. 357, 66 Am. St. Rep. 112, 39 Atl. 739; Rose v. Hale, 185 Ill. 378, 76 Am. St. Rep. 40, 56 N. E. 1073. |