posterity, the said share should accrue to the use and benefit of the owners being of the testator's relation or descendants, their lives lasting, of the next share or shares, and so on, as long as any posterity should exist, and in case of extinction, to the next heirs, the devise is deemed as against public policy and therefore void, for the reason that it created a succession of life estates, rendering the real estate inalienable53. The institution of executory devises was founded on the reason that the will of the testator was to be supported; for where it was evident that he intended a contingent remainder, and when it could not operate as such by the rules of law, the limitation was then out of indulgence to wills held to be good as an executory devise54. §152. A Conditional Fee. No conditional fee is created where a house and lot was devised to a church under the clause, "to be used as a parsonage and nothing else, and to be kept for that purpose and used for nothing else"55. $153. Estate Created by Use of the Words, "Dying Without Issue." The rule is that the use of the words "dying without issue" after words which create an estate in fee, simply creates a fee conditional upon the existence of issue of the first taker at the time designated, which is usually the death of the first taker. Thus, under the statute which 53. St. Amour v. Rivard, 2 Mich. 294. 54. Kent's Commentaries, 263. 55. Adams v. First Baptist Church of St. Charles, 148 Mich. 140, 11 L. R. A. (N. S.) 500, 111 N. W. 757. reads: "When a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words 'heirs,' or 'issue,' shall be construed to mean heirs or issue living at the death of the person named as ancestor." A devise to the wife of the testator during her life and after her death to a designated son, and, "if he should die without heirs," to two specified daughters, vests the fee in the son if living at the time of the death of the testator, subject, however, to be defeated if he dies without issue surviving him56. §154. Estate in Severalty. A devise in which a testator devises his estate in trust, and by a single clause makes provision that one-half of the income shall be paid to his son, and one-half to his daughter for life creates an estate severalty57. §155. Estate in Fee. Devise with Power of Disposition. Power is often given to those who have an interest in property, devised or bequeathed by the testator, to dispose of the same. It is apparent that this power has an effect upon the duration of the estate granted in the will. Where a testator devises an estate in fee, appearing clearly from the will, but in another clause burdens this estate with certain trusts whereby an attempt is made to direct the course of descent upon the death of the first taker, such clause is repugnant to the estate granted and therefore is of no effect58. Where a devise reads, "I give and be 56. C. L. '97, §8804; Mullreed v. Clark, 110 Mich. 229, 68 N. W. 989. See Goodell v. Hibbard, 32 Mich. 47. 57. Palms v. Palms, 68 Mich. 355, 36 N. W. 419. 58. Forbs V. Darling, 94 Mich. 621, 54 N. W. 385. queath to my beloved wife, in money, $3000, to be paid in accordance with the following provisions, to wit: I will and bequeath all the residue and remainder of my personal property, and all of my real estate, to my only child, C., for her sole use and benefit during her life, and at her death to her children: Provided, that the aforesaid payment of $3000 be made to my wife, or the annual interest at the rate of 7 per cent, annually, as she, my wife, may elect, and, at any time when my wife may want any portion or the whole of said amount of $3,000, it shall be paid to her on three months' notice, either verbal or written, or she may sell enough out of said real estate to pay said amount on the failure of my daughter to pay her after the aforesaid notice," this devise is construed that it was the intention of the testator to place the sum of $3000 at the absolute disposal of the widow59. §156. Estate for Life with Power of Control or Disposition. A power of disposal annexed to a devise may have effect upon the duration of the estate granted or devised. Thus, a devise to the wife of the testator of all of his property to be used "as she may desire and wish for and during the term of her natural life" does not defeat the estate in fee, where the intention is manifest that this power should only be exercised by the wife if required for her proper supporte0. A life estate in the fund only vests in the wife, coupled with the right that she may use part of the principal as her demands may require, where the 59. Smith v. Jackman, Mich. 192, 73 N. W. 228. 115 60. Gadd V. Stoner, 113 Mich. 689, 71 N. W. 1111. bequest was that "the sum of $2000, the interest on said sum, at the rate of 7 per cent. per annum, to be paid to her annually during the life, and in case the $140 per year shall not be sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need more than the interest on said sum, then she shall use so much of the principal as is necessary for her support and maintenance, and the payment of her needed medical attendance and funeral expenses." The interest of the wife is expressly limited to a life estate where a devise is "subject to the conditions that she is to receive the rents, profits, and benefits during her natural lifetime," with remainder, after her death, to a daughter. It is manifest now that a devise of property for the devisee's natural life, with authority to dispose of enough for his support, if the use of it should be not sufficient, creates a life estate with conditional power of disposal62. §157. Estates Created in Personal Property. The rule at common law is that if there is nothing in the context of the will to show an intention to give anything less than an absolute ownership of personalty, the interest created and intended is that incident to an absolute ownership. It is manifest that where a life estate passes only by the gift of a life estate with full power 61. Lyon v. Sweeny, 91 Mich. 478, 51 N. W. 1106. In McCarty v. Fish, 87 Mich. 48, 49 N. W. 513, the husband only took a life interest, with the privilege of using the entire amount if necessary. In Glover v. Reid, 80 Mich. 228, 45 N. W. 91, the wife took a life estate with the privilege of making such disposition of it as her needs required. 62. Morford v. Diffenbacker, 54 Mich. 593, 20 N. W. 600. of disposition in a devise of realty a like disposition will be made in a bequest of personalty. Though it is questionable whether an absolute bequest to the wife of the testator of a specific mortgage to which is appended a further bequest, after her death, of the residue of the mortgage to a son, does not transfer an entire and absolute interest, instead of a life interest merely, or a partial or qualified one64, yet it has been determined that the word "use" gives legatee absolute possession and control of mortgage $158. Annuities and Incomes. The right of the testator to dispose of the income of his property by will, and by disposition of this kind, is recognized by law as long as the dispositions are not against the rules governing perpetuities. The beneficiary, under a will directing the payment of a specified sum yearly to a beneficiary for her support during the settlement of the estate, payments to be made in stated installments "until the estate is closed," is entitled to the allowance until the final settlement actually takes place, notwithstanding the estate is kept open after the time when such settlement might otherwise be made by the prosecution of a claim against such beneficiary. Payments under a will that the income shall be received by all beneficiaries clear of their debts and alienations and the "payments must be made either directly to the beneficiaries, or upon their respective orders, signed not more than three months before 63. Godshalk v. Akey, 109 Mich. 350, 67 N. W. 336. 64. Proctor v. Robinson, 35 Mich. 285. 65. Patterson v. Stewart, 38 Mich. 402. 66. In re Batchelor's Estate, 119 Mich. 239, 77 N. W. 941. |