I dissent. A will, when the time within which it may be contested has expired, becomes law to all interested parties supplanting many statutory provisions relating to the disposal of the property devised. In the interpretation of wills the statutes provide, "A will is to be construed according to the intention of the testator" (Section 7016, Revised Codes), and *Page 211 "the testator's intention is to be ascertained from the words of the will" (Section 7017, Revised Codes), and "The words of a will are to receive an interpretation which will give to every expression some effect" (Section 7024, Revised Codes). Mary J. Daily, when she named her husband, Charles G. Daily, executor of her will, said in that will, "I direct that he serve as such without the necessity of giving any bond upon qualifying, and that he shall have full power and authority to sell or dispose of any or all of my estate, at public or private sale, and with or without notice, and for cash or part cash and part deferred payments, at such time or times as to my said executor shall seem advisable and to the best interests of my estate, and without the necessity of obtaining any order or authority from any court, judge or tribunal and without the necessity of giving any bond upon the sale of real or personal property, and my said executor shall have full power and authority to invest the proceeds of such sale or sales as he may deem to the best interest of my estate or to use such portion of the proceeds of such sales as may be necessary for other purposes."
The last paragraph of the will provides, "Nothing in this will shall be construed as requiring my said executor to make any accounting to any person whomsoever, but it is my desire that during the lifetime of my said husband, he shall have absolute control over all my property, real, personal or mixed, with the right to use the same and the proceeds thereof for his own benefit and according to his accustomed mode of living, fully believing that he will protect the same, so that upon his death the remaindermen herein mentioned shall come into a considerable estate."
The majority have proceeded to determine the respective rights of the estate of Charles G. Daily and the remaindermen in accordance with the strict letter of the statutes applicable in the ordinary administration of an estate under the ordinary rules of descent and distribution of the property of deceased persons, without any regard whatever for many of the more vital provisions of the will which, under the statutes I have *Page 212 just quoted, take precedence over rules and regulations contrary to such provisions of the will, whether such contrary rules and regulations be statutes or court decisions.
In effect Mary J. Daily said, in her will, to the remaindermen mentioned therein, "In making my will I have placed in the hands of my husband as executor all my property to dispose of in any way or manner that he may choose according to his judgment and use the proceeds thereof, with the hope that, upon his death, something may be left for you, but if nothing is left you shall not require any accounting from him as to what he did with the property; I do not require any bond of him nor shall he be required to obtain the approval of any court, judge or any other person, as to how he shall sell or dispose of the property I have left to his custody and control, nor shall any person question any act of his done under the authority I have vested in him by my will."
The will absolves the life tenant of practically every restriction which the statutes require the ordinary executor or administrator to observe, but the majority disregard the provisions of the will and follow the statutes. The testatrix under the sections I have quoted was at liberty to devise and bequest her property under the conditions expressed in the will. Contrary to its provisions the majority opinion undertakes to review what the life tenant did as in a proceeding in accounting, a course which the will denies to any one. The trial court was in error in admitting any evidence relative to the inventory except such as was necessary to comply with the inheritance tax law, or to require any showing as to how any personal property that came into the hands of the life tenant was disposed of or its value. All that the remaindermen could demand under the will was the right to receive any of the remainder of the corpus held by the Charles G. Daily estate which came to Daily as life tenant. In some jurisdictions courts have gone so far as to hold that "where an absolute power of disposition, either express or implied, is added to a life estate in real property, the life estate is thereby enlarged to a fee." *Page 213 33 Am. Jur. 487. This is the minority rule but the question has never been passed upon in this jurisdiction. I can conceive of no language that could have been inserted in the will that would vest in Charles G. Daily any greater power to dispose of any or all of the property of his deceased wife at any time or in any manner than is embodied in the will.
In order to get another viewpoint, let us review the situation beginning at the time of the death of Mary J. Daily through to the time of the death of Charles G. Daily: On the death of his wife Daily had the right to elect whether to (a) accept the life estate, or (b) take the ownership of the one-third interest to which he was entitled under the provisions of section 6975, Revised Codes. In accepting the life estate he became liable as executor but not personally for the interest accruing on any outstanding indebtedness of his deceased wife. There is no ground whatever upon which he could be held liable to the remaindermen for the $10,000 mortgage given to secure a note signed by his wife and himself. Even admitting that it was placed to the credit of his bank account and was spent by him for obligations incurred for himself it has no bearing on any question involved here. The clear and unrestricted title to Mary J. Daily's property was in her while she was alive. She could do with it as she chose without let or hindrance from any one and particularly in so far as the remaindermen were or are concerned. If she had chosen to do so she could have sold all the property of which she died possessed and turned the proceeds in cash over to her husband as a gift and no one could be heard to object except creditors holding debts against the wife, the payment of which might be jeopardized by such gift. I do not pause to cite authorities to sustain these conclusions as any one with elementary knowledge of probate law will readily agree to their correctness. The property in which Daily had a life estate was liable for all the testatrix' debts, interest thereon, taxes levied against such property, cost of upkeep of improvements and possibly insurance thereon, and if Daily did not choose to pay any part of such obligations, he *Page 214 could not, under the will, be compelled to do so out of personal funds or the income from the life estate if all the income were consumed to meet his personal expenses, "according to his mode of living", but it was his duty as custodian of the estate to take care of such obligations, even if it became necessary to sell assets of the estate to meet such obligations.
If Daily had renounced the life estate and elected to take one-third of the estate pursuant to the provisions of section 6975, Revised Codes, he would have been entitled to one-third of all the real and personal property of the estate (In re Mahaffay's Estate, 79 Mont. 10, 254 P. 875) and would have been personally liable for no estate obligation of any nature, but would have had unquestioned right to one-third of the net income derived from the property. I think it not improper to express the opinion that if Charles G. Daily had elected to take the one-third interest in his deceased wife's estate rather than the life estate under the will such one-third interest, along with the generous sums left to him under the will of a deceased brother, $10,000 of which he used to pay the real estate mortgage on the deceased wife's realty, the Charles G. Daily estate would have been materially greater at the time of his death than it is shown to have been. Based upon the income as shown by the record the business block on Main Street, alone, is of much greater value at this time than the full appraised value of the entire Mary J. Daily estate as shown by the official appraisement.
In 31 C.J.S., Estates, sec. 41, p. 47, it is said: "In general a life tenant is entitled to everything in the nature of income or profits accruing during the continuance of the life estate. In the absence of any limitation or restriction thereof, everything in the nature of income or profits accruing during the continuance of the life estate belongs to the life tenant, and at his death, if not otherwise disposed of by him, passes to his representative; but any appreciation in the principal of the estate belongs to the remainderman unless it is otherwise provided by the grantor." *Page 215
Under this rule Charles G. Daily was entitled to all the income from the estate with the right to dispose by will of any balance he possessed at the time of his death.
Petition for rehearing denied June 14th, 1945.