Summary
In Mosgrove, the testator gave his nurse a life estate in certain property with a remainder over to his nieces and nephews.
Summary of this case from In re Estate of RitzOpinion
Opinion Filed July 14, 1938.
Rehearing Denied August, 2, 1938.
Appeals from the Circuit Court for Orange County, Frank A. Smith, Judge.
Akerman Dial and Dickinson Dickinson, for Appellants;
George P. Garrett and Lawrence Rogers, for Appellees.
STATEMENT.
The bill of complaint herein and the amendments thereto filed in the Circuit Court for Osceola County, Florida, contain extensive allegations, and the following is included in the prayer of the bill:
That:
"23. This Court will take jurisdiction of the subject matter and the parties to this cause, and construe the Will as aforesaid and determine:
"(a) Whether the Will is valid, or is so uncertain as to be invalid.
"(b) If said Will is valid, then the several rights, interests and estates of the several parties interested under said Will inter sese and the powers of the executors to carry on said business and the period for which they may continue to carry on said business.
"24. This Court will grant to the plaintiffs such special relief by way of discovery, accounting, stay order, restraining order, temporary injunction, permanent injunction, construction and interpretation of Will, directions to the executors and other parties herein, cancellation of said Will or portions thereof, orders to discontinue business, orders for transfer of property, and/or other special relief as this Court shall find to be equitable in the premises."
The will is as follows:
"LAST WILL AND TESTAMENT OF EMIL MACH.
"I, EMIL MACH, of the County of Osceola and State of Florida, do make, declare and publish this my last Will and Testament, hereby revoking all other Wills heretofore made by me.
"ITEM 1. I direct that my body be given a decent and Christian-like burial, and that my executors pay all my just debts as soon as possible after my death, or as soon as my executors deem it shall be to the best interest of my Estate to pay the same.
"ITEM 2. To my brother, ERNEST MACH, of Osceola County, Florida, I will and bequeath all my interest, whatsoever, in the garage building at the corner of Broadway and Dakin Avenue in the City of Kissimmee, Florida. I also bequeath to my said brother, ERNEST MACH, the proceeds of the two (2) life insurance policies in the sum of One Thousand ($1,000.00) each, in which he has been named as beneficiary.
"ITEM 3. To my brother, OTTO MACH, of Orange County, Florida, I will and bequeath the proceeds of a certain life insurance policy which I carry in the sum of Three Thousand Dollars ($3,000,00), in which he has been named as beneficiary.
"ITEM 4. To Mrs. Mary Selina Mosgrove, who has nursed and cared for me during my ill health for a long period of time, I will and bequeath my Nash automobile and all of my household and kitchen furniture of every description. All the rest and residue of my property of whatsoever description and wherever located, including the Mach Lumber Crate Mill in Kissimmee, Florida, and all machinery and equipment therein or connected with the Mach Lumber Crate Mill, accounts receivable and any cash which I might have on hand or in banks, I direct that my executors shall divide into two (2) equal parts. One part of which I will and bequeath to my brother, Otto Mach, of Orange County, Florida, his heirs and assigns forever, in fee simple. The other part of said residue I will and bequeath to MRS. MARY SELINA MOSGROVE for and during her natural life with remainder over to my five (5) nieces and nephews, the children of the said OTTO MACH and ERNEST MACH, share and share alike. However, the said Mary Selina Mosgrove shall have the right to sell, mortgage, pledge or dispose of any of the real or personal property bequeathed to her under this item of this my will in any manner in which she shall see fit, and use the proceeds thereof in any manner she shall see fit, it being my intention to bequeath her this her half interest of said residue of my estate without restrictions, save and except that if she should possess any of the same at the time of her death, it is my will that it shall be equally divided among my said nieces and nephews.
"ITEM 5. I hereby appoint my brother, OTTO MACH, of Orange County, Florida, and the said MARY SELINA MOSGROVE, executors of this my Last Will and Testament with full authority without any order of any court to sell, mortgage or dispose of any of my real or personal property at public or private sale or to do any and all other acts that they may deem necessary and proper to carry out this my Will, and I hereby expressly relieve them and each of them of the necessity of making bonds or returns as such executors to any Court. However, it is my wish that they jointly carry on my business, the Mach Lumber Crate Mill, as long as they shall deem it practical, they sharing the income thereof, in accordance with Item 4 of this my Will."
Upon proceeding had in the cause, the following decree was rendered:
"FINAL DECREE CONSTRUING WILL.
"And now this day this cause coming on to be heard upon due notice upon final hearing, and the Court having heard argument of counsel and considered the briefs of counsel, and having considered the record in this cause and being fully advised in the premises,
"IT IS CONSIDERED BY THE COURT that the plaintiffs are entitled to a decree construing the Last Will and Testament of Emil Mach, as prayed in their bill.
"THE COURT CONSTRUES SAID WILL, in the respects in which construction is prayed, as follows:
"Finding No. 1: In Item 4, instead of the disposition of the residuary estate therein made being limited to the property specifically described therein, as contended by the plaintiffs, and instead of only personal property being included in the residuary estate because the phrase `will and bequeath' was used without the use of the term `devise,' as contended by the plaintiffs, the Court has determined that except all property theretofore described and bequeathed or devised, the testator by Item 4, left `all the residue of my property of whatsoever description and wherever located' to Otto Mach and Mary Selina Mosgrove, one-half in fee simple to the former and one-half for life to Mary Selina Mosgrove, with remainder over to the five children of Otto Mach.
Finding No. 2: It is unnecessary to determine as to the power of the executors `to sell, mortgage or dispose of any real or personal property,' etc., because no attempt has been made to exercise any such power, nor is there any showing that any such attempt will be made. The debts having been paid, there is no occasion for the executors to act under this power, for the residuary legatees and devisees became immediately entitled to the possession and enjoyment of the estate upon the payment of the debts of the estate.
"Finding No. 3: While the will expresses in Item 5, appointing the executors, the testator's `wish that they jointly carry on my business, the Mach Lumber Crate Mill, as long as they shall deem it practical, they sharing the income thereof, in accordance with Item 4 of this, my will,' yet that does not reduce the estate which Otto Mach and Mrs. Mosgrove, should take, nor does it postpone the vesting of their estate. Even if the executors did thereby receive the power and were directed to carry on the business, it was not to be beyond the time for completing the administration of the estate, and surely after all debts were paid, the income was to be divided by them as legatees. The language of the will was loose in failing to distinguish clearly between the duties of Otto Mach and Mary Selina Mosgrove, as executors and their rights and interests as legatees, but it can be understood.
"Finding No. 4: The estate of Mary Selina Mosgrove under the will is only a life estate. She can only convey or encumber the life estate she had in the real estate and can only convey or encumber a life estate in the personalty. She has the right to sell, mortgage, pledge or dispose of a life estate in the real estate and a life estate in the personalty in any manner she shall see fit. Otto Mach has a fee simple title in an undivided one-half of the real estate and personalty. Mary Selina Mosgrove has a life estate in an undivided half interest in the personalty, and this life estate in real property and life estate in personalty, Mary Selina Mosgrove receives without restrictions, save and except that if she shall possess any of the real estate and/or any of the personal property so bequeathed to her at the time of her death, the same is to be divided equally among the testator's nieces and nephews.
"Finding No. 5: It is strongly urged by plaintiffs that under the will an equitable conversion took place, that such was testator's intention, and that it was necessary that the executors sell the residuary estate in order to make the division directed by the will. The Court has decided that there is no equitable conversion under the will, and that the testator's direction to the executors to divide the estate into two equal parts is complied with by the executors turning over the residuary estate to Otto Mach and Mary Selina Mosgrove, each of whom would thereby acquire an undivided one-half interest therein, the said Otto Mach receiving an undivided one-half interest in the fee simple title to the real estate and personal property and Mary Selina Mosgrove an undivided one-half interest in a life estate in the real estate and an undivided one-half interest in a life estate of the personal property of which Emil Mach died possessed. The title to this residuary estate became vested in Otto Mach and Mary Selina Mosgrove as aforesaid upon testator's death, subject only to the liability of this property being subjected to the payment of debts, which the Court finds was not necessary and will not be necessary. It is unnecessary to decide what means might have been necessary to effectuate this provision of the will, that is to say, to place the said devisees and legatees, Otto Mach and Mary Selina Mosgrove, in possession of their several vested interests in said estate, if the said legatees and devisees had not received the same from the executors, for it appears that, for all practical purposes, Otto Mach and Mary Selina Mosgrove acquired possession of their said several interests and have dealt with them as their individual property. If there is any of the property which has not been distributed to these legatees and devisees, the executors were required, by the will, to distribute the same after payment of the debts, an undivided half interest to Otto Mach in fee simple, and an undivided half interest in a life estate in the real estate and an undivided half interest in the personalty to Mary Selina Mosgrove for her lifetime. Since the estate need not be sold and the proceeds divided nor the property divided in kind and delivered a share to each of them, it is a simple matter to distribute the property to them without division, except to give each an undivided half interest in the remaining estate as follows: An undivided half interest in fee simple to Otto Mach and an undivided half interest for life in the real estate and personal property to Mary Selina Mosgrove (for her lifetime).
"Finding No. 6: It having been the principal purpose of this suit to effect a construction of the will involved in this case, no further relief will be granted other than the construction of the will above given.
"IT IS CONSIDERED BY THE COURT that the said will is valid and that the several rights, interests and estates of the several parties interested under said will inter sese, and the power of the executors to carry on the business of the Mach Lumber Crate Mill and the period for which they may carry on said business, are as set forth in the foregoing findings numbered 1 to 6.
"IT IS FURTHER CONSIDERED BY THE COURT that the costs of this suit be and they are divided and charged equally between the parties plaintiff and defendant in this case, one-half thereof to be assessed against the plaintiffs and one-half thereof assessed against the defendants.
"DONE AND ORDERED in Chambers at Orlando, Florida, on this the 31st day of March, A.D. 1937.
"FRANK A. SMITH, "Judge of the Above Court."
An appeal was taken by the defendant, Mary Selina Mosgrove, "as executrix of the last will and testament of Emil Mach, deceased, and individually," all the other parties being made appellees.
Such appellant assigned errors on procedural orders and also the following:
"1. The Court erred in entering the final decree in form and substance therein stated.
"2. The Court erred in finding No. 4 in the construction of the last will and testament of Emil Mach as follows: `She can only convey or encumber the life estate she had in the real estate and can only convey or encumber a life estate in the personalty. She has the right to sell, mortgage, pledge or dispose of a life estate in the real estate and a life estate in the personalty in any manner she shall see fit.'
"3. The Court erred in decreeing that Mary Selina Mosgrove under the last will and testament of Emil Mach was not given full and complete power to sell and mortgage the fee title in the property devised for her during her lifetime.
"4. The Court erred in the construction of the last will and testament of Emil Mach in holding that the defendant, Mary Selina Mosgrove, could not sell, mortgage, pledge or dispose of the fee title in the real estate willed to her and also in the personal property likewise willed to her."
There was also filed the following:
"CROSS APPEAL AND ASSIGNMENT OF ERRORS.
"TO: MARY SELINA MOSGROVE and OTTO MACH, as Executors of the Last Will and Testament of Emil Mach, deceased; and individually; ROSCOE MACH; RUDOLPH MACH; MARY MACH FISHER, joined by her husband and next friend, EDDIE FISHER; OSCEOLA CRATE MILLS, INC.; J.T. HEDRICK; PHILEMEAN GARLEAN; PENINSULAR DISTRIBUTING COMPANY; EXCHANGE NATIONAL BANK and WM. G. MOSGROVE; and
"TO ALL WHOM IT MAY CONCERN:
"Come now the plaintiffs in the above styled cause, Robert Mach, an adult, Glorida Mach, a minor, by and through her next friend and Guardian, Ernest Mach, and Ernest Mach, individually, and pursuant to the notice of entry of appeal filed herein by the defendants, Mary Selina Mosgrove and Otto Mach, as Executors of the Last Will and Testament of EMIL MACH, deceased, and individually, and the assignments of errors filed by said defendants, now cross appeal and make as parties to said cross appeal the following persons, namely: Mary Selina Mosgrove and Otto Mach, as Executors of the Last Will and Testament of Emil Mach, deceased, and individually, Roscoe Mach, Rudolph Mach, Mary Mach Fisher, joined by her husband and next friend, Eddie Fisher, Osceola Crate Mills, Inc., J.T. Hedrick, Philmean Garlean, Peninsular Distributing Company, Exchange National Bank and Wm. G. Mosgrove, and make said cross appeal returnable to the Supreme Court of the State of Florida at Tallahassee, Florida, on the 27th day of July, A.D. 1937, namely, the same date as the return of the original appeal filed herein. And said cross appellants hereby cross-assign the following errors to the ruling of the Chancellor in this cause, viz.:
"Cross-Assignment No. 1: The Court erred in ruling in the final decree construing the will filed in this cause as he did in Finding No. 1.
"Cross-Assignment No. 2: The Court erred in his ruling made in Finding No. 2 of the final decree construing will filed in this cause.
"Cross-Assignment No. 3: The Court erred in his ruling made in Finding No. 3 of the final decree construing will filed in this cause.
"Cross-Assignment No. 4: The Court erred in his ruling made in Finding No. 5 of the final decree construing will filed in this cause.
"Cross-Assignment No. 5: The Court erred in his ruling made in the final decree construing will filed in this cause as follows:
"`It is considered by the Court that the said will is valid and that the several rights, interests and estates of the several parties interested under said will inter sese, and the power of the executors to carry on the business of the Mach Lumber Crate Mill and the period for which they may carry on said business, are as set forth in the foregoing findings numbered 1 to 6.'
"And because of said errors so made, said cross-appellants pray that the said final decree may be reversed in the respects cross-assigned in this cross appeal."
In construing the will of a testator, the controlling objective is to determine from the entire written instrument the testamentary intent; and if such ascertained intent is not contrary to law or public policy and it is capable of being made effective to accomplish testator's intent with respect to the subjects, objects and purposes as expressed in the will, such ascertained legal intent should be carried into effect.
"In the construction of a will, the intention of the testator, as therein expressed, shall prevail over all other considerations, if consistent with the principles of law. To this great rule in the exposition of wills, all others must bend. Lines v. Darden, 5 Fla. 51; Russ v. Russ, 9 Fla. 105; Floyd v. Smith, 59 Fla. 485, 51 So. 357, 138 Am. St. Rep. 133, 37 L.R.A. (N.S.) 651, 21 Ann. Cas. 318; Dean v. Crews, 77 Fla. 319, 81 So. 479; Perkins v. O'Donald, 77 Fla. 710, 82 So. 401; Rewis v. Rewis, 79 Fla. 126, 84 So. 93; Cole v. Cole, 88 Fla. 347, 103 So. 78; Brown v. Harris, 90 Fla. 540, 106 So. 412; Arnold v. Wells, 100 Fla. 1470, 131 So. 400; First Trust, etc., Bank v. Henderson, 101 Fla. 1437, 136 So. 370, 378; Blocker v. Blocker, 103 Fla. 285, 137 So. 249; Byers v. Beddow, 106 Fla. 166, 142 So. 894, 896.
"The intention of the testator is the polar star to guide in the construction of a will. Russ v. Russ, 9 Fla. 105.
"And it is the duty of the court to give effect to such intention, where it can be ascertained from the will. State v. Beardsley, 77 Fla. 803, 82 So. 794.
"No rule of construction of mere words control the intention. Lines v. Darden, 5 Fla. 51; Floyd v. Smith, 59 Fla. 485, 51 So. 537, 138 Am. St. Rep. 133, 37 L.R.A. (N.S.) 651, 21 Ann. Cas. 318.
"And it should prevail against any perversion of words from their usual meaning. Lowrimore v. First Sav., etc., Co., 102 Fla. 740, 140 So. 887." 13 Enc. Digest Fla. Repts. 346. See also McClelland's Exr. v. McClelland, 132 Ky. 284; DePass v. Kansas Masonic Home, filed at this term.
In a will the words, "will and bequeath," may be sufficient to pass the title to real estate and to personalty, the context and the objectives of the will being duly considered in determining the intent of the testator in the use of the quoted or other words in the will. Sec. 3, Chap. 16103, Acts of 1933; Sec. 5457, Perm. Supp. 1936 to C.G.L.; 40 Cyc. 993; Mills v. Franklin, 128 Ind. 444, 28 N.E. 60; 69 C.J. 380, 916. See Allen v. Hunt, 213 Mass. 276, 100 N.E. 552; Steiff v. Seibert, 128 Iowa 746, 105 N.W. 328.
Where a testator doth "will and bequeath" a half part in the residue of his real and personal property to a designated person "for and during her natural life with remainder over" to his five nieces and nephews, he may afterward by definite provisions in the will enlarge the life estate by appropriate words expressing such an intent when consistent with the entire will. But such an intent to enlarge the life estate already limited may not be inferred from a right or power given to the life tenant to dispose of the "property bequeathed to her and to use the proceeds thereof as she may see fit," coupled with a statement that the testator's intent being to bequeath to her "her half interest of said residue * * * without restrictions," when the estate is not enlarged expressly or by necessary implication, but the life estate is previously expressly and specifically limited and the intent to bequeath only a life estate is consistent with the will considered as an entirety, and the power or right to dispose of the property bequeathed is consistent with the testator's intent that such life tenant may continue to use the property bequeathed to her for life in a business enterprise, with its hazards and incidental changes in the uses and values of property, and the testator's expressed and otherwise manifest intent is that if the life tenant is at her death possessed of any of the property bequeathed to her, or of the proceeds from a disposition of her life estate or interest in the property, it shall be equally divided among the testator's nieces and nephews, the remaindermen after the death of the life tenant. See Brown v. Harris, 90 Fla. 540, 106 So. 412. See notes to 2 A.L.R. 1243; 27 A.L.R. 1381; 69 A.L.R. 825; Kimp v. Thomas, 81 N.J. Equity 103, 85 A. 815; Wooster v. Cooper, 53 N.J. Equity 682, 33 A. 1050; Smith v. Bell, 31 U.S. 68, 8 L. Ed. 322; Brant v. Va. Coal Iron Co., 93 U.S. 327, 23 L. Ed. 927; Roberts v. Moseley, 100 Fla. 267, 129 So. 835; Redfearn: Wills and Admin. of Estates in Fla., pp. 273, 333.
The will contains five "Items." Item 1 gives directions as to the burial and the payment of the testator's debts. Items 2 and 3 and the first sentence of Item 4 make separate specific bequests to the testator's two brothers and to Mrs. Mary Selina Mosgrove.
"Item 5. I hereby appoint my brother, OTTO MACH, of Orange County, Florida, and the said MARY SELINA MOSGROVE, executors of this my Last Will and Testament with full authority without any order of any court to sell, mortgage or dispose of any of my real or personal property at public or private sale or to do any and all other acts that they may deem necessary and proper to carry out this my Will, and I hereby expressly relieve them and each of them of the necessity of making bonds or returns as such executors to any Court. However, it is my wish that they jointly carry on my business, the Mach Lumber Crate Mill, as long as they shall deem it practical, they sharing the income thereof, in accordance with Item 4 of this my Will."
While the will cannot curtail the powers of the courts to require right and justice to be done to creditors and legatees and devisees including remaindermen, Item 5 of the will purports to confer full powers upon the named executors to deal with the property of the estate as "they may deem necessary and proper to carry out this my will," without bond or returns or court orders; and also expresses the testator's wish that the executors "jointly carry on my business, the Mach Lumber Crate Mill, as long as they shall deem practical, they sharing the income thereof, in accordance with Item 4 of this my will." Of course, if the executor, Otto Mach, survives the executrix, the joint operation of the "business" could not continue longer than the life of the executrix, Mrs. Mosgrove, the life tenant of one-half interest in the residue of the testator's property which includes "the Mach Lumber Crate Mill," etc.
In Item 4 of the will, the words "will and bequeath" are intended to and do give title to both real and personal property embraced in the residuary devise.
After making specific bequests in Items 2, 3 and in the first sentence of Item 4, the testator in Item 4 of his will directs that "all the rest and residue of my property of whatever description and wherever located," which, as shown by the will, includes both real and personal property, shall be divided into two equal parts by his executors. One part of which he bequeathed to his brother, Otto Mach, in fee simple. The other part of said residue he bequeathed to Mrs. Mary Selina Mosgrove "for and during her natural life, with remainder over to my five (5) nieces and nephews * * * share and share alike." This gave to Otto Mach a fee simple interest in one-half of the "residue" of the testator's property; and in contrast gave to Mrs. Mary Selina Mosgrove "the other part of said residue" "for and during her natural life with remainder over." Continuing, Item 4 provides: "However, the said Mary Selina Mosgrove shall have the right to sell, mortgage, pledge or dispose of any of the real or personal property bequeathed to her under this item of this my will in any manner in which she shall see fit, and use the proceeds thereof in any manner she shall see fit, it being my intention to bequeath this her half interest of said residue of my estate without restrictions, save and except that if she should possess any of the same at the time of her death, it is my will that it shall be equally divided among my said nieces and nephews."
In Item 4 of his will the testator bequeaths a half interest in the "residue" of his property "to Mrs. Mary Selina Mosgrove for and during her natural life with remainder over to" the testator's "five nieces and nephews." The testator then gave to Mrs. Mosgrove "the right to sell, mortgage, pledge or dispose of any of the real or personal property bequeathed to her under this item of this will in any manner in which she shall see fit, and use the proceeds thereof in any manner she shall see fit, it being my intention to bequeath her this her half interest of said residue of my estate without restrictions, save and except that if she should possess any of the same at the time of her death, it is my will that it shall be equally divided among my said nieces and nephews." These provisions of the will appear after the provision expressly limiting the estate already bequeathed to Mrs. Mosgrove in the "residue," to a half interest therein, "for and during her natural life with remainder over" to the testator's five nieces and nephews. Such subsequent provisions confer a power; and do not expressly or impliedly enlarge the estate previously and specifically limited to a life estate "with remainder over" and such subsequent provisions do not clearly express or imply an intent of the testator that Mrs. Mosgrove shall have "the right to sell, mortgage, pledge or dispose of" more than the life estate in any of the real or personal property bequeathed to her under this item of this my will. The provision, "it being my intention to bequeath her this her half interest of said residue of my estate without restrictions, save and except that if she should possess any of the same at the time of her death, it is my will that it shall be equally divided among my said nieces and nephews," has reference to Mrs. Mosgrove's "half interest of said residue," and does not expressly or impliedly enlarge that interest beyond a life estate in such "half interest"; and the power just previously conferred is a right to dispose of any of the property "bequeathed to her under this item of this my will." The bequest to her was a "half interest" in the "residue," "for and during her natural life with remainder over to "the testator's "five nieces and nephews."
The "interest" or estate in one-half of the residue of the testator's property that is bequeathed to Mrs. Mosgrove in Item 4 is expressly limited to an estate therein, "for and during her natural life with remainder over"; and the subsequent provisions in Item 4 do not expressly or impliedly enlarge the life estate previously expressly limited to Mrs. Mosgrove, but confer upon her a power or "right to sell, mortgage, pledge or dispose of any of the real or personal property bequeathed to her under this item of" the will. The will also expresses an intention of the testator "to bequeath her this her half interest of said residue of my estate without restrictions, save and except that if she should possess any of the same at the time of her death, it is my will that it shall be equally divided among my said nieces and nephews." Such provision considered with the whole of Item 4 and the entire will, likewise does not expressly or impliedly enlarge the life estate previously expressly and specifically limited to Mrs. Mosgrove. The words "to bequeath" and "her half interest" and "without restrictions" in the connection used do not severally or in conjunction express or imply an intent to enlarge the "interest" or the estate in one-half of the "residue" that had already been expressly and specifically limited to Mrs. Mosgrove "for and during her natural life with remainder over to my five (5) nieces and nephews, the children of the said Otto Mach and Ernest Mach, share and share alike." The words, "without restrictions," as used and when considered in connection with the words and purpose of the first part of the same sentence, refer to the power or right to dispose of the property "bequeathed to her" and do not operate to enlarge the life estate expressly limited to her in the previous sentence of the will, or to affect the remainder over.
The right or power conferred upon Mrs. Mosgrove to sell, mortgage, pledge or dispose of any of the property "bequeathed to her under this item of this my will" is necessarily limited to that which is appropriate and legal to effectuate the provisions of the will according to the testator's intention as it may be duly interpreted by the courts.
Because of the business enterprise in which most of the residue of the estate was used and the testator's contemplation that such business, with its hazards and varied uses of property, might be continued by his executors, one of whom was the life tenant of a half of the residue of the estate, thereby needing changes in the property bequeathed, the power or right to dispose of any of the property bequeathed to the life tenant not in excess of her life estate or interest therein was expressly though inaptly provided for by the testator who desired a continuance of the business enterprise.
The provisions of the will considered as an entirety clearly negative any intent of the testator to authorize the life tenant to dispose of the fee simple title to the half interest in the property bequeathed to her and specifically limited to an estate "for and during her natural life with remainder over," so as to destroy or unduly impair the vested remainder expressly bequeathed to the testator's five nieces and nephews.
Any portion of the half interest of the personal property or the value thereof bequeathed to the life tenant and not lost or consumed in the proper use of it by the life tenant, and any portion of or interest in the real estate or the value thereof that becomes "her half interest of said residue" as a life estate therein, which she should possess at her death was intended by the testator to go to his five nieces and nephews as designated remaindermen. The remainder was vested to come into possession of the life tenant; and the remainders may be in values if so legally determined.
If it is desirable to dispose of a fee simple estate in any of the property in which Mrs. Mosgrove has a life estate, a court of equity may control the disposition of, and the conservation of, the values of the remainder.
The testator's will expresses no intent that the residue of the estate shall be arbitrarily considered as, or converted into, personalty.
It is assumed that Item 1 of the will has been complied with by the payment of the testator's debts.
The bequest to Otto Mach of a fee simple estate in one-half of the "residue," and the bequest to Mrs. Mosgrove of the other half "for and during her natural life with remainder over" to designated nieces and nephews of the testator, were present bequests to the first takers, the portions to be ascertained as stated in the will, with vested remainder over after the expiration of the life estate bequeathed to Mrs. Mosgrove in one-half of the "residue."
Affirmed.
TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.
ELLIS, C.J., not participating because of illness.