WILHELMINA LARSON v. EMMA MARDAUS

Minnesota Supreme Court1927-07-01No. No. 25,984

172 Minn. 48

Summary · law.co

Holding. The widow possesses the power to mortgage and convey the real estate by virtue of the will's grant of absolute beneficial power of disposition, which statutory law converts her life estate into a fee absolute as to mortgagees and purchasers. The judgment is affirmed.

Wilhelmina Larson, a widow, sought to mortgage and convey real estate that she inherited under her late husband's will. The will granted her the use and benefit of all his property during her lifetime, along with full power and authority to dispose of any portion she needed for her comfort and well-being. Upon her death, any remaining property was to pass to their children.

The court determined that the will's language created an absolute beneficial power of disposition in the widow. Under the relevant statutory provisions, when such an absolute power of disposition is granted to someone holding a life estate, that estate is converted into a fee absolute with respect to third parties like mortgagees and purchasers. The widow's power to dispose of the property during her lifetime is essentially equivalent to absolute ownership as far as creditors and purchasers are concerned, though the children retain their rights to any property remaining at her death.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a widow's life estate with power of disposition grants authority to mortgage and convey real property
Construction of will language granting 'full power and authority to dispose' of property for comfort and benefit
Effect of absolute power of disposition on conversion of life estate to fee absolute under statute

Procedural posture

The defendant appealed from a judgment rendered in favor of the plaintiff widow regarding her power to mortgage and convey inherited real estate.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wilson, C. J.

Defendant appealed from a judgment. The record presents the inquiry whether plaintiff, the widow of a testator, has power to mortgage and convey real estate by virtue of the language in the will which was followed by the final decree.

The important part of this will is as follows:

“With full confidence in the integrity and good judgment of my beloved wife, Wilhelmina Larson, and desiring that she may have every comfort and necessity during her life, I therefore, give, bequeath and devise all my property to my wife for her use and benefit during her lifetime, with full power and authority to dispose of any portion thereof which she may need for her comfort and enjoyment in health or sickness.

“On the death of my said wife, all the residue and remainder of said property then in being, I give, bequeath and devise to our children, share and share alike, * * *”

Under the usual rules of construction this language means that the testator intended the widow to have the use of the estate during her life coupled with the power of alienation, and that upon her death all the residue and remainder of said property “then in being” should go to the children. Dun. Dig. § 10257; Smith v. Bell, 6 Pet. 68, 8 L. ed. 322; Hasbrouck v. Knoblauch, 130 App. Div. 378, 114 N. Y. S. 949. This expresses an absolute beneficial power of disposition which brings the subject matter within the language of two sections of G. S. 1923:

“8115. When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular” estate for life or years, such estate shall be changed into a fee, absolute in re spect to the rights of creditors and purchasers, but subject to any future estate limited thereon, in case the power is not executed, or the lands sold for the satisfaction of debts.”

“8119. Every power of disposition shall be deemed absolute, by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit.”

.yVe are controlled by these statutes. No trust is involved. Plaintiff’s estate in the real estate is changed into a fee absolute in respect to the mortgagee or purchasers but subject to the future estate of the children if the power of alienation is not exercised. Why should it not be so? There is really no distinction between such absolute beneficial power of alienation and absolute ownership — as to all persons other than the remaindermen. There is no justification for the claim that “a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure.” Hershey v. Meeker County Bank, 71 Minn. 255, 73 N. W. 967; Ashton v. G. N. Ry. Co. 78 Minn. 201, 80 N. W. 963. The inquiry must be answered in the affirmative.

In In re Estate of Meldrum, 149 Minn. 342, 183 N. W. 835, the court did not find it necessary to consider the above statutes. That action related to the relative amount of inheritance tax to be paid and the subject matter was considered in the absence of an exercise of the power of alienation.

Affirmed.