The defendant in error, plaintiff below, as executrix of the estate of Hannah Butler, deceased, filed her petition in the Court of Common Pleas, asking a construction of item 2 of the will of John Butler, deceased, husband of Hannah Butler, deceased, who died on the 13th day of April, 1905.
The petition states that John Butler was the owner in fee simple of certain real estate described in the petition, and sets out item 2 of the last will and testament of John Butler, which is as follows:
"I give, bequeath, and devise all property I may be possessed of, real, personal, or mixed to my wife, Hannah C. Butler, to have and to hold during her lifetime, then it is to be inherited by our son, Edward J. Butler, should he survive his mother. *Page 506 If not, she is at liberty to dispose of it as she sees fit and proper."
The petition further recites that Edward J. Butler predeceased his mother, Hannah Butler; that he died intestate, and without issue. The petition further recites that Hannah Butler, by will, gave full power to the plaintiff as her executrix to sell the property, which is the same property that was owned by John Butler, and devised in his will, and is the same property described in the petition; that pursuant to the power under the will of Hannah Butler the executrix sold the property, but the purchaser refused to complete the sale, claiming a cloud upon the title.
The petition makes all the next of kin parties, together with the surviving widow of the son, Edward J. Butler.
The petition prays that the court order, adjudge, and decree that the true meaning and effect of item 2 of the last will of John Butler, deceased, vested a fee-simple estate in Hannah Butler, surviving widow of John Butler.
The only answer was filed by Maud L. Butler, surviving widow of Edward J. Butler, the deceased son. None of the other heirs filed any pleading in the case. The substance of her answer is that as the widow of Edward J. Butler she is entitled to all the real estate mentioned, and she prays the court to so find.
The court is unable to see how it can make a finding on the record submitted. There is no bill of exceptions or agreed statement of facts filed in the case. Neither the will of John Butler nor of Hannah Butler is before the court. All we have *Page 507 before us is item 2, set forth in the petition. The answer throws no light on the question.
If we were in a position to construe the will, and item 2 was not affected by any other provision in the will, we would hold that Hannah Butler, deceased, under item 2, would at least have the power of disposition, either by deed or by will. If she did dispose of the estate by deed or by will she would convey a good title, as her power of alienation is absolute, and it would not be necessary to ascertain what estate she had.
The brief of plaintiff in error, filed in the case, states that she did not dispose of the estate. The brief of counsel for defendant, and the petition, indicate that she did do so. Her will is not before us. The lower court found on the evidence that Hannah Butler had an absolute, indefeasible estate in fee simple, together with the power of sale.
Sufficient has been said to show that on the state of the record we are not in a position to pass upon the question sought to be raised in the error proceeding.
The petition in error will be dismissed, at the costs of plaintiff in error.
Petition in error dismissed.
BUCHWALTER, P.J., and CUSHING, J., concur. *Page 508