#### Larsen and another, Appellants, vs. *Johnson,*Respondent.

*November 26*

December *16, 1890.*

*(1) Wills: Devise of life estate with power to sell. (3) Evidence: Transactions with person since deceased. (8, Jj) Contracts: Consideration of marriage: Statute of frauds: Executed contract.*

1. Land was devised to the testator’s wife “ for her sole use and benefit so long as she shall live, with power to dispose of the same if it shall be necessary for her support and comfort; ” and the will further provided that “ whatever remains after her death shall go to the *301heirs,” etc. *Held,*that the wife took a life estate, with power to dispose of the fee whenever the necessity mentioned should arise; and that her grantee, upon showing that such necessity existed, took the absolute fee.

2. In ejectment brought by the heirs of the testator against the grantee of the wife after her death, the defendant was competent to testify as to the contract between himself and the deceased wife, since the plaintiffs did not derive their title from her. Sec. 4069, R. S.

5. An oral contract between the wife and said defendant by which the latter was to provide for her support and comfort during life, pay her debts, take care of, manage, and improve the land, and to that end the parties were to marry and live together upon the land, which should be conveyed to the defendant in fee simple, is not void under subd. 3, sec. 2307, R. S. The consideration for the conveyance was not the marriage of the parties, but the support of the wife.

4. Such contract, having been fully executed by the defendant providing for the comfort and support of the wife during her life, and by her conveyance of the land to him, is not within the statute of frauds (sec. 2302, R. S.).

APPEAL from the Circuit Court for *Ráeme*County.

Ejectment by the- heirs of Austin Larsen, deceased, against *Andrew*Johnson, the grantee of Susan Larsen Johnson after the death of her first husband, the said Austin Larsen. The facts are stated in the opinion. The plaintiffs appeal from a judgment in favor of the defendants.

Eor the appellants there were briefs by *Hand <£ Flett,*.attorneys, and *Ruse c& Wait,*of counsel, and oral argument by *F. O. Hand*and *L. JR. Ruse.*

They contended, *inter alia,*that the power to sell did not enlarge the life estate to .a fee. *Jones <o. Jones,*66 "Wis. 310; *Smith v. Bell,*6 Pet. 68; *Bramt <o. Virgüma G. & R. Go.*93 U. S. 326; *Giles v. Rittle,*104 id. 291; *Bradley v. Weseott,*13 Ves. Jr. 445; *Boyd v. Strahan,*36 Ill. 355; 2 Eedf. "Wills, 336; *Jenkins v. Gonyp-ton,*123 Ind. 117; *Rogue v. Batemcm,*43 N. J. Eq. 434; *Jaekson v. Robins,*16 Johns. 587; *Rhode Rsland Trust Go. v. Gommeveial Hat. Bk.*14 E. I. 625; *IRinklds Appeal,*116 Pa. St. 490; *Hamlin v. TR. 8. Exp. Go.*107 Ill. 443; *Downie**302*V. Downie,*■ 9 Biss. 853; *Stuart v. 'Walker,*72 Me. 145; *Wells <o. Seeley,*47 Hun, 109; *Park's Adm'r v. Am. H. M. Society,*20 Atl. Bep. (Yt.), 107, 42 Alb. L. J. 130. If it be conceded that Susan Larsen took a life estate with the power of sale of the fee under certain contingencies, it must appear affirmatively that such contingency arose and that the power was well executed. *Siemens v. Winship,*1 Pick. 317; *La/rned i). Bridge,*17 id. 339-; *Smith v. Snow,*123 Mass. 323; *Johnson v. B-attelle,*125 id. 453. The conveyances in question, if operative at all, only passed the title of the life estate of Susan Larsen Johnson, and was not an *execution of the power,*no mention of the power being made therein. 2 Perry, Trusts (3d ed.), sec. 511c; *Mut. Life Lns. Go. v. Shipman,*119 N. Y. 324; *Towle v. Ewing,*23 "Wis. 336; *White v. Hicks,*33 N. Y. 383; *Bingham's Appeal,*64 Pa. St. 345; *Blagge v. Miles,*1 Story, 426; Sugden, Powers (3d Am. ed.), 477; 4 Kent’s Com. (12th ed.), 330 *et seg.*

A devise to the wife for her necessary support would cease whenever she had other means of support. It has been held in the case of a devise to a widow for the support of the children of the testator, that the right of a female child to support ceases upon- her marriage. *Taylor v. Elder,*39 Ohio St. 535; *Moore v. Gamble,*9 N. J. Eq. 252; *Gormor v. Ogle,*4 Md. Ch. 433; *Thorpe v. Owen,*2 Hare, 612.

The intention of the testator, to give whatever remained of the proceeds, in case of disposition of the lands, to the heirs is sufficiently clear, and equity will protect their interest. *Gouclie v. Johnson,*109 Ind. 427; *Hall v. OtAs,*71 Me. 326; *Pierce v. Stidworthy,*79 id. 234; *Be Ortelle,*24 Minn. 173; *Ackerma/n v. Gorton,*67 N. Y. 63; *Fliki/nger v. Saum,*40 Ohio St. 591; 2 Jarman, "Wills, 411; 2"Washb. B. P. secs. 252, 239, 699; *Yam, Horn v. Campbell,*100 N. Y. 287. The power of sale is, then, a power in trust under sec. 2121, S.' & B. Ann. Stats, and cases cited in note. If, therefore, *303tbe conveyance in question was made without a valid and sufficient consideration, if made in violation of tbe intention of tbe testator, it is a fraud upon tbe remaindermen and should be held void as not a proper execution of tbe power. R. S. sec. 2150; *Smith v. Bowen,*35 N. T. 83; *Shcmlc v. Be Witt,*44 Ohio St. 237; 1 Story’s Eq. Jur. sec. 256.

*T. M. Kea/rney*and *J. Ii. Dyer,*for tbe respondent.

ORtoN, J".

The testimony tends to prove, and tbe circuit court found, substantially, tbe following facts: One Austin Larsen died July 20, 1857, seised in fee simple and in possession of eighty acres of land in tbe county of Racine, leaving no children, but leaving bis widow, Susan Larsen, and a last will and testament by which be gave and bequeathed to bis beloved wife, tbe said Susan Larsen, all of said land by particular description, “ to be for her sole use and benefit so long as she shall live, with power to dispose of tbe same if it shall be necessary for her support and comfort in this life.” He also devised to her certain kinds of personal property for life,' and bis goods and chattels generally to be hers forever. Tbe residuary clause of tbe will is that “ whatever remains after her death shall go to tbe heirs of him and her in tbe manner provided, by tbe laws of this state.” His only heirs were bis two brothers, tbe appellants, and tbe children of two deceased brothers. The said will was duly proven and admitted to probate in said county on tbe 7th day of September, 1857, and said Susan Larsen was appointed sole executrix, having been so named in tbe will.

About eleven acres of said land only was partially cultivated, and tbe buildings thereon were a small log-house and a log-shed covered with brush and straw, and of little value. Tbe remainder of tbe land was covered with small and poor timber, and some marsh. Tbe said Susan Larsen remained in possession of said land, and did all she could to *304derive Per support therefrom, and the little personal property upon it, but was unable to do so, until about June, 1859. She had been compelled to contract debts for such purpose to the amount of over $500, and was unable to tent the land for an amount sufficient for her support. It sufficiently appeared from the testimony that the time had come when it was necessary to dispose of said land for her support and comfort, and for the payment of her debts. About that time the said Susan Larsen entered into a contract with the respondent that he should provide for her support and comfort during her life, pay her said debts, take care of, manage, and improve said land so as to make it productive for such purpose, and to that end it was agreed that they should become husband and wife, and live together on said land, and that, in consideration of the above provisions for her support and comfort, the said Susan should convey said land to the respondent in fee simple. In execution of the said contract, having been married to the said Susan on the 9th day of June, 1859, the respondent at once entered into the possession of said land, provided for the support and comfort of the said Susan during all the time thereafter and until the 23d day of March, 1868; and he paid off said indebtedness with interest, removed stumps, trees, and brushwood from said land, dug ditches for the drainage of the said marsh land, built fences, erected a granary and other farm buildings, and labored diligently to improve said land, and rendered the- same sufficiently productive for their comfortable support, and he thereby gave said land its then principal market value. The respondent fully performed his part of said agreement, and he was therefore entitled to the conveyance of- said land by the said Susan Larsen, according to her part of the agreement. In execution of said contraction her part, the said Susan Larsen, on the said 23d day of March, 1868, conveyed said land to one Charles Alby by warranty deed, and caused *305the said Alby and wife to convey the same to the respondent, *And/rew*Johnson, by a like warranty deed, and he thereby became entitled to said land in fee simple. Prom that time until the 14th day of April, 1884, when the said Susan, then Susan Johnson, died, the respondent provided amply for her support and comfort. It appeared that the said Susan had always been in poor and feeble health, and unable to do much physical labor.

There are fifteen exceptions to the findings of the above facts, but only a few of them are contested in the brief of the learned counsel of the appellant.

It appears that the record of the will and of the proceedings of probate had been destroyed by fire, and copies thereof had been established by the county court according to the statute; and such restored records were offered in evidence. Exception was taken to their admission. They appear to have been restored according to law, and to be competent evidence to prove the contents and probate of the will. Exception was also taken to the testimony of the respondent to prove the contract between himself and the said Susan Larsen, because the said Susan Larsen was not living. We are cited to sec. 4069, E. S. The statute does not exclude such testimony, because in this action the plaintiffs, as the *“*opposite party, did not derive their title from such deceased person.”

There are two objections made by the learned counsel of the appellants to the validity of the contract: (1) Because the consideration was the marriage of the parties. Sec. 2301, E. S. (2) Because the contract was not in writing, as required by sec. 2302, E. S.

1. The marriage of the parties was not the consideration of the contract to convey the land or any part of it. It was only incidental as the condition or relation in which the respondent should render to the said Susan Larsen, and she receive, her support and comfort as the consideration *306of tbe conveyance. Tbe agreement to marry may have been made at tbe same time, but not as any part of tbe consideration for the conveyance. It was for tbe benefit of tbe respondent as much as, if not more than, it was for her benefit. There was sufficient lawful and valuable consideration to support tbe contract, aside from, any supposable consideration of marriage.

2. The agreement, although not in writing, was fully executed and performed. This, by all authority, takes it out of tbe statute. Tbe said Susan Larsen, now deceased, received from tbe respondent her support and comfort as long as she lived, and tbe conveyance was made in full execution and performance of tbe contract on both sides.

Tbe main question in this case is, What is tbe nature and extent of tbe power given in this will to tbe widow, Susan Larsen, in tbe words of tbe will, “ with power to dispose of tbe same [tbe land] if it shall be necessary for her comfort and support in this life ” ?

It is tbe contention of tbe learned counsel of tbe appellant — (1) That this power does not enlarge tbe life estate of tbe said widow *to a fee;*that is, it is a power to dispose of tbe life estate only. Tbe authorities cited by tbe learned counsel are not applicable to this case. There m ay be similar language in a will, construed in tbe light of accompanying facts and circumstances, which will not bear a more extended construction to carry out tbe clear intention of the testator. But tbe language, as well as tbe circumstances in such cases, are entirely different from those of this will, as in *Jones v.*Jones, 66 Wis. 310, and tbe other cases cited. Tbe only question in which tbe respondent is interested is whether tbe power may pass the fee. Whether it is conditional or absolute, restricted or unrestricted, is immaterial to him, if tbe contingency had happened upon which she bad tbe power to dispose of tbe land in fee. It is claimed in bis behalf that such was tbe case, and there was much *307testimony introduced to show that it was necessary to dispose of all of this laud, in its then condition, for her support and comfort, and that the proceeds of the sale were all consumed for such purpose; and so the circuit court found, and, we think, correctly. (2) By far the greater number of the authorities cited by the learned counsel of the appellants are in support of this construction of the will, and, with much candor, they say: “ The cases are numerous that, where a power is given to the donee to sell for the purpose of obtaining her necessary support, it is a limited one, and can only be exercised where the necessity arises, and that it is incumbent upon the grantee under the power to show that it is properly exercised.” This is a concession of all that the respondent need to claim in this case to support the judgment. If the widow had the power to dispose of the *corpus*or fee of the estate, on the condition or contingency of its necessity for her support and comfort, and the evidence shows that such a contingency arose, then the title of the respondent is perfect.

I am inclined to think that this is the proper construction of this power. The learned counsel have furnished all the authorities necessary to sustain this position, and they are very much in point. *Park's Adm'r v. Am. H. M. Society,*20 Atl. Rep. (Vt.), 107; *Minot v.*Prescott, 14 Mass. 496; *Whitcomb v. Taylor,*122 Mass. 248; *Cutting v. Cutting,*86 N. Y. 522; *Morford v. Dieffenbacker,*54 Mich. 605. In this last case the devise was for the life of the devisee, with power to' dispose of enough of the estate for his sup7 port. The court holds that this gave a life estate with conditional power of disposal in fee. *(Henderson v. Blackburn,*104 Ill. 227. In *Goudie v. Johnston,*109 Ind. 427, the devise was of personal property to the wife, for life, with power to sell. Held, that it was a power to dispose of the *corpus*of the estate. In *Henderson v. Blackburn, supra,*the devise was of a life estate, with power of disposition of *308what she may need of it. It was held that the power gave the right of disposal of the fee, if the necessity should arise. A similar case is that of *Terry v. Wiggins,*47 N. Y. 512. In *Bishop v. Remple,*11 Ohio St. 277, there was a power of disposal during the life of the devisee. The court holds “ that the power of selling and conveying is inconsistent with the idea of a naked life *estate;*” and that the wife had power to sell and convey the land in fee; and the deed in question was upheld as a sufficient execution of the power. In *Bamforth v. Bamforth,*123 Mass. 280, the will gave an estate for life, with power of disposing of as much of the estate as may be necessary for the devisees’ comfortable support, as long as either shall live. Chief Justice Guay says: “Thereby giving them a power to dispose of so much of the *fee*as may be necessary for that purpose.” It was held also, in this case, as in many of the above cases, that the will created no trust in such a case. *Stevens v. Winship,*1 Pick. 317, is a quite similar case, with a power to sell “ in case the wife shall stand in need for her comfortable support.” This is cited in the above case. It was held “ that the devisee would take a fee on the happening of such contingency.” *Johnson v. Battelle,*125 Mass. 453, is to the same effect, as is also *Larned v. Bridge,*17 Pick. 339. See, also, *Giles v. Little,*104 U. S. 291; *Smith v. Snow,*123 Mass. 323; *Jenkins v. Compton,*123 Ind. 117; *Kaufman v. Breckinridge,*117 Ill. 305. In nearly all of the above cases there was a residuary clause in the will that any remainder should go to heirs or others named. In case the land is sold under the power, what may remain of the proceeds on the death of the devisee, unexpended, passes under the residuary clause, and nothing else. The authorities seem to be nearly if not quite uniform that under such a power the widow may sell and convey the fee whenever it shall be necessary for her support. It would seem that our statute of powers is to the same effect. Secs. 2107, *3092108, E. S. *We*have seen that such a power is unaccompanied. by any trust. Sec. 2112, E. S., seems to settle the disputed question whether such a power is absolute. “ It shall be *deemed*absolute if the grantee is enabled in his life-time to dispose of the entire fee for his own benefit.”

It follows, therefore, that Susan Larsen had the power to dispose of the land in fee, and that it was properly executed by the sale and conveyance thereof to the respondent, and that he held the same in fee simple as against the appellant heirs of the testator. •

*By the*Court.— The judgment of the circuit court is affirmed.