Roberts v. Lewis (153 U.S. 367)/Opinion of the Court
This certificate distinctly presents for decision the question argued, but not decided, when this case was before this court at a former term, reported in 144 U.S. 653, 12 Sup. Ct. 781, of the construction of the will of Jacob Dawson, the material part of which was as follows:

'To my beloved wife, Editha J. Dawson, I give and bequeath all my estate, real and personal, of which I may die seised, the same to be and remain hers, with full power, right and authority to dispose of the same as to her shall seem most meet and proper, so long as she shall remain my widow, upon the express condition, however, that, if she should marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, should go to my surviving children, share and share alike.'

By the statutes of Nebraska, 'every devise of land in any will hereafter made shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate;' and 'the term 'heirs,' or other technical words of inheritance, shall not be necessary to create or convey an estate in fee simple.' Comp. St. Neb. c. 23, § 124; c. 73, § 49.

In the opinion delivered by this court in a former case between different parties, and concerning other land, the second of those sections was not referred to, and the first was imperfectly quoted (omitting the word 'clearly' before 'appear'), and was treated as of no weight; and it was held, reversing the decision of Judge McCrary in Giles v. Little, 2 McCrary, 370, 13 Fed. 100, that by the true construction of the will the widow 'took under it an estate for life in the testator's lands, subject to be divested on her ceasing to be his widow, with power to convey her qualified life estate only,' and that 'her estate in the land, and that of her grantees, determined on her marriage with Pickering.' Giles v. Little, 104 U.S. 299, 300.

The supreme court of Nebraska, in a subsequent case, considered those sections of the statute as controlling the construction of the will, and making it clear that the widow took an estate in fee. Little v. Giles, 25 Neb. 321, 322, 41 N. W. 186. That court was also of opinion that the gift over to the children passed only that portion of the estate, real or personal, not disposed of by the widow during her widowhood; and, upon the whole case, concluded 'that the intention of the testator was to empower his widow to convey all of his real and personal estate, if she saw fit to do so, and, as she had exercised this right and power before her remarriage, the grantees under her deeds acquired all the title of the testator to such lands.' 25 Neb. 327, 328, 334, 41 N. W. 186.

The opinion of the supreme court of the state appears to have been formed upon full consideration of the difficulties of the case, and is entitled to great weight, especially upon the construction of the statute of the state. Suydam v. Williamson, 24 How. 427. And this court, on reconsideration of the whole matter, with the aid of the various judicial opinions upon the subject, and of the learned briefs of counsel, is of opinion that the sound construction of this will, as to the extent of the power conferred on the widow, is in accordance with the conclusion of the state court, and not with the former decision of this court, which must therefore be considered as overruled.

The testator's primary object, manifestly, was to provide for his widow. He begins by giving her 'all my estate, real and personal,' which, of itself, would carry a fee, unless restricted by other words. Lambert v. Paine, 3 Cranch, 97. He then says, 'to be and remain hers,' which, upon any possible construction, secures to her the full use and enjoyment of the estate, while she holds it. She is also vested, in the most comprehensive terms, 'with full power, right, and authority to dispose of the same [which, as no less title has yet been mentioned, naturally means the whole estate] as to her shall seem most meet and proper, so long as she shall remain my widow.' This last clause, so far as it controls the previous words, has full effect, if construed as limiting the time during which the widow may have the use and enjoyment of the estate, and the power to dispose of it, and not restricting the subject to be disposed of. The power thus conferred, therefore, in its own terms, as well as by the general intent of the testator, gives her, during widowhood, the right to sell and convey an absolute title in any part of the estate; for it would be difficult, if not impossible, to obtain an adequate price for a title liable to be defeated in the hands of the purchaser by the widow's marrying again.

That the power was intended to be unlimited in this respect appears even more distinctly by the terms of the next clause, by which, if she should marry again, the testator declares it to be his will that 'all of the estate herein bequeathed, or whatever may remain, should go' to his surviving children. By not using the technical word 'remainder,' or making the devise over include the entire estate at all events, but carefully adding, after the words, 'all the estate herein bequeathed,' the alternative, 'or whatever may remain' (which would otherwise have no meaning), he clearly manifests his intention to restrict the estate given to the children to whatever has not been disposed of by the widow; and there is nothing upon the face of the will, nor are there any extrinsic facts in this record, having any tendency to show that the power of the widow is less absolute over the real estate than over the personal property.

The cases of Smith v. Bell, 6 Pet. 68, and Brant v. Iron Co., 93 U.S. 326, relied on in support of the opposite conclusion, involved the construction of wills expressed in different language from that now before the court.

In Smith v. Bell the testator bequeathed 'all his personal estate,' consisting principally of slaves, to his wife, 'to and for her own use and benefit and disposal, absolutely, the remainder of said estate, after her decease, to be for the use of' his son; and the decision was that the wife took a life estate, only, and the son a vested remainder. The wife had made no conveyance of the property; the words of the gift over were the technical ones, 'the remainder of my estate,' appropriately designating the whole estate after the wife's death; and the court distinctly intimated that, if the will were construed as giving the wife 'the power to sell or consume the whole personal estate during her life,' a gift over of 'what remains at her death' would be 'totally incompatible,' and 'void for uncertainty.' 6 Pet. 78. But in the case at bar the gift over is, in express terms, of 'whatever may remain.' If the intent expressed by these words can be carried out, the children take only what has not been disposed of. If the clause containing them is repugnant and void, the view of the supreme court of Nebraska that the widow took an estate in fee is fortified. See Howard v. Carusi, 109 U.S. 725, 3 Sup. Ct. 575; Potter v. Couch, 141 U.S. 296, 315, 316, 11 Sup. Ct. 1005.

In Brant v. Iron Co., the bequest which was held to give a life estate, and no power to convey a fee, was only of the testator's estate, real and personal, to his wife, 'to have and to hold during her life, and to do with as she sees proper before her death.' 93 U.S. 327.

The numerous cases cited in the briefs have been examined, and show that the general current of authority in other courts is in favor of our present conclusion; but, as they largely depend upon the phraseology of particular wills, it would serve no useful purpose to discuss them in detail.

It is express a positive opinion upon the question whether, under this will, the widow took an estate in fee; for if she took a less estate, with power to convey in fee, the result of the case, and the answers to the questions certified, must be the same as if she took an estate in fee herself.

For the reasons above stated, this court is of opinion that the will of Jacob Dawson did give his widow such an estate in lands in Nebraska, of which he died seised, that she could, during her widowhood, convey to third persons an estate in fee simple therein, and that the circuit court of appeals, in determining the nature of the estate vested in her by the will in such lands, should be governed, not by the former decision of this court in Giles v. Little, 104 U.S. 291, but by the decision of the supreme court of Nebraska in Little v. Giles, 25 Neb. 313, 41 N. W. 186.

The result is that the first question certified must be answered accordingly, that the second question must be answered in the affirmative, and that the third question must be answered in the negative; and that these answers be certified to the circuit court of appeals. 

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