The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1878-07-10
WIN, MlIhullIn'I Administrator Appellant,
John Rice ct al. Appsllses.
SYLLABUS.

| AhAbG1t
William Milhollin died 10 1887, leav.
ing will, the first clause Of which was
as follows:
desire that the personal part Of my
estate be sold, or 80 much thereof As will
satisfy and pay all my just debts and ia.
neral expenses, and the balance Of said
property to remain on the plantation for
the benefit Of my wife Ellenor Milhollin,
to use or dispose Of at her discretion dur.
ing her natural life, and also TO have the
right Of disposal at her death, and also 1t
lei my desire that all the lands belonging
to me shall belong to my vile during her
natural life, TO use In any way she may
think proper during her life, and at her
death the land is TO be sold and the money
arising from said sale, the one-half OF II
to 10 TO my heirs, including Andrew Mil.
holm, the son Of Mary Akemon, and the
other half Of the moneys arising from said
sale 10 to be at her disposal, TO whom she
thinks proper OF her heirs.
Held let. This clause OF the will gives
to the vile the personal estate In abso-
lutte property; the gift Of II for life with
power TO consume or dispose oil the prin-
cipal at her discretion being construed to
amount to absolute property.
81. She had but life estate In the
lands. II moiety Of the lands them
selves had been put at her disposal in
stead Of the proceeds Of 9 sale thereof she
would have had fee simple in moiety
OF the lands. As by the will then she
would have had life estate and her heirs
the remainder in fee simple, had the rule
in Shelley's case been applied, her life
estate would be converted into fee sim-
pie estate. But as she could by this will
dispose OF to her heirs the proceeds OF
the sale Of the lands, but not the land it
self, the interest conferred by the will on
her heirs was personally and her lille es-
tate being 10 land the two could not
unite under the rule in Shelley's case and
give her fee simple.
3. She had no ownership in this moiety Of
the proceeds Of the sale Of the land. Had
she been authorized to dispose Of any
portion Of the personal estate OF her hus:
band in which no estate or interest had
been given her, and this power OF dispo-
sal had been absolute, she would have
had absolute property in such personali-
ty over which che was given such absolute
power Of disposal. But having been given
expressly q life estate In this land, the
power to dispose Of 1t or Of its proceeds
would not enlarge her life estate in the
land or give her any ownership in the
proceeds OF the sale thereof, after her
death. She had in those proceeds power
to dispose OF them, but no ownership.
4. This power Of disposal conferred on
the wife was a power in the nature Of q
trust, and she having deed without exc.
cuting it, the moiety Of the proceeds OF
the land should 20 10 her heir, and II she
had more than one II should be equally
divided among them.
s. She having died'in 1873 her sole
heir under the provision Of our code,
then In force, was her subsequent husband,
she leaving no children:or descendants.
9. The word heirs In this will can not
be construed to mean heirs apparent,
that Is her next IN kin at the testator's
death.
2. II the devisee OF life estate is
simply authorised to dispose Of the prop.
erty at her death among certain def.
mite class as she may think proper, this
will be held to be a power in the nature
OF trust, unless It otherwise appears
from the will that the duty TO execute
such power, to be inferred from its
being granted, was designed by the tes.
tator 10 be left to the option Of the party
on whom such power was conferred. The
rule being that when there appears q
general intention in favor Of class and
a particular intention in favor OF indi.
viduals Of the class, and the particular
intention fails, from that selection not
being made, the Court will carry into
effect the general intention in favor OF the
class.