Terppe's Estate

Opinion by

Mr. Justice Brown,

A second reading of the will of Frederick L. Terppe is not necessary to determine what interest in his estate passed under it to his wife, for it most clearly appears that he gave her but a life estate in his real and personal property, coupled with a power of appointment to dispose of it by will, and, upon her failure to exercise that power, he devised it absolutely to his adopted son, William Frederick Terppe. He gave to his wife the use and enjoyment of all of his property and “all the income therefrom, less taxes and charges thereon, for and during the term and period of her natural life,” and “as to the remainder and fee simple of said property,” the right of disposing of it by will “to whomsoever and howsoever and upon such terms and conditions as to her shall seem best at time of making her said will.” With the intention of Frederick L. Terppe thus clearly expressed, we turn to the will of his widow to ascertain from it whether she intended to blend with her own separate estate, for the payment of her debts, that portion of the appointed property which her executor sold under an order of court to the appellant. Her intention in exercising her power of appointment is to be gathered from her will, and as it there appears it must prevail.

By the second clause of the will of Julia Terppe she directs, “that all legal debts owing by my estate be paid by my executors hereinafter named as soon after my decease as conveniently can be done without detriment to my estate.” Then follow eight clauses containing bequests of jewelry, books and other personal property and a legacy of $3,000. After making these bequests the testatrix gives all the rest of her estate, real and personal, to the adopted son. By the residuary clause she clearly intended to devise to him the drug store property which belonged to her husband’s estate and which her executor sold to the appellant for the payment of her debts, for of this particular piece of property she says, “but suggesting in this connection, in the way of advisement to him, that it is my wish in accepting said real estate he shall continue to conduct the drug business as now conducted on the property left me by my late husband, Frederick L. Terppe, for and during at least the period of ten years from the date of my decease, and that during this period of time he shall pay whatever incumbrances may be left by me against the said estate, either by reason of liens against the same owing by me at the time of my death or by reason of the legacies and devises herein granted to other persons to be paid therefrom;” and then follows this peremptory direction: “He shall not dispose of the said estate in any manner but conduct it in the way of business until such debts are paid off and the property clear.” The devise of the drug store property to the adopted son is under the power of appointment in the will of the husband of the testatrix. She had but a life estate in that property, and if she had not exercised the power of disposing of it by will, it would have gone absolutely to the adopted son. Her power to dispose of it by will was to be exercised upon such terms and conditions “as to her shall seem best at the time of making her said will.” In exercising the power and devising the property she did not charge it with the payment of her debts, and it is, therefore, not liable for their payment. It was devised subject to the legacies in the eight preceding clauses of the will, and the devisee was requested that during the period of ten years from her decease he should pay whatever incumbrances were against the estate left by her husband and the legacy given by the testatrix. A further peremptory direction was that he should not dispose of it in any manner until the property was cleared — not from her general debts, but from what has just been stated. Our construction of the eleventh clause of the will of the testatrix, guided by her intention as we there read it, is that she gave the residue of her own estate to Frederick William Terppe, and, exercising her power of appointment, devised the real estate of her husband to the same devisee, subject only to the payment of certain legacies and of incumbrances which she had not placed upon it. The court, therefore, was without jurisdiction to direct this property to be sold for the payment of her debts.

The assignments of error are sustained and the decree confirming the sale is reversed, the costs on this appeal to be paid by the estate.