The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 18

272 FEDERAL REPORTER

is that the effect of erasing these words would be, as is now claimed,
to give Halliday the fee without any reference to whether or not he
had children, while the next paragraph, which remained undisturbed,
provided for the disposition of the estate in case Halliday should die
without issue. The erasure of the words "heirs of his body," without
substitution of anything else, would be quite inconsistent with the
next paragraph.
Hence we are led to the conclusion that this will, as duly probated,
should be deemed to read "in trust for the heirs of his body." We are
aware that this reasoning has the color of ourselves determining the
contents of the will, as a court of probate might do; but we see no
alternative between this treatment and a conclusion that the will has
never been probated, because the probate order is so ambiguous as to
be wholly unintelligible and ineffective; and we are not ready to adopt
this conclusion.
Such interests as the grandmother had, which she might pass by her
will, came through the will of the grandfather. So much of that as is
material is as follows:
"I. I give, bequeath & devise to my beloved wife, Lettle Ann Joy, my entire
estate of lands, stock, notes and all other property of which I may be possess-
ed or which may be due or coming to me at the time of my death-to be used
& controlled by her, alter paying all just claims against my estate, in such
manner as she may think prudent and best. I fully & freely confide in her
to provide Ior & aid such charities as she knows I desire to be aided.
"II. Should the income from our farm not prove sufficient for the comfort-
abie maintenance of my wife, Lettie, I do hereby authorize her to contract,
sell & dispose of such parts of the farm as she may think best to provide for
her maintenance and the charities before referred to in item I, and deeds to
execute & deliver theretor
"III. Within three months after my decease, I desire my beloved wife
Lettie to execute her last will and testament, disposing of the entire estate in
accordance with my wishes, well known and understood by her. Should cir-
cumstances demand it. she shall execute other and later wills, providing for
the disposition of my estate, always, however, keeping in mind my beloved
daughter, Annie Joy Halliday, and the issue of her body.
"IV. Should any devisee or legatee of either myself or my beloved wife in-
stitute Or cause to be instituted any legal proceeding to set aside or thwart
the purposes or provisions of either this will or the last will & testament of
my wife, such devisee or legatee shall be by such action, cut off & deprived any
portion of my estate."
[10] It was evidently the thought of this testator to give to his
widow a life interest, and to give her a measure of discretion, by ap-
pointment, as to the remainder. There has been much discussion a.
to whether the right to consume or divert and the power of appoint-
ment were so unlimited as to give to her a fee instead of a life estate;
but, in the view we take, it is not important to decide this question, nor
vet to determine whether the reference to the persons whose interests
are to be kept in mind, "Annie Joy Halliday [the mother] and the is-
sue of her body," operates in a dispositive way or is only precatory.
We may, without deciding, assume that the grandmother did not take
a fee, and that her power of appointment was so circumscribed that
the estate in her hands was charged with a trust to appoint as directed,
and so come to the interpretation of that trust. If the disposition or

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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/40/ocr/: accessed December 16, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.

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