Power v. Jenkins

Bartol, J., delivered the opinion of this court. The only question which it is necessary for us to determine-on this appeal, is, what are the rights of the parties to the particular fund, upon which the decree of the Circuit court operates ? It appears from the record, that after the death of the testa-tor, Ann Power, elected to take the annuity of one thousand dollars for her life, as provided by the will; and afterwards ⁴⁵⁷ William Power with Thornton A. Jenkins and wife, united in a mortgage, conveying certain real estate of which the testator died seized, for the purpose of securing to said Ann Power atid Isabella Power, the payment of the life annuities respectively given to them by the will. The bill in this case was filed by said life annuitants, and Elizabeth Power the widow aud sole devisee of William Power, and on the 22nd day of June 1854, the said real estate embraced in the mortgage, was decreed to be sold, and the fund now in controversy is the proceeds of said sale.

The decree or order from which this appeal was taken, was passed in said cause on the 17th day of September 1855, and, after directing the investment of so much of said fund, as will be sufficient to yield the annuities or yearly sums of one thousand dollars, and of thirty dollars to be paid over to said annuitants respectively, the said decree proceeds to adjudge and order that, on the death of the life annuitants, the principal of said investment shall be paid over to the child or children of Ann Jenkins, who may then be living; to the exclusion of the devisee and representative of William Power, (reserving however, for future decision, the rights of Thornton A. Jenkins, the husband of Ann Jenkins,) and that the surplus of the proceeds of sale, which shall remain after the investments are made, shall be paid, the one-half thereof to Elizabeth Power, and the one-half to the children of Ann Jenkins deceased. Prom the latter part of the decree, awarding one-haif of the surplus to Elizabeth Power, Jenkins and his children have appealed. But this appeal, we are clearly of opinion, cannot be sustained; for whatever may be the construction of the 2nd and 3rd clauses of the will, Elizabeth Power as devisee of William Power, would be entitled to one-half of said surplus under the residuary clause. Mrs. Elizabeth Power has appealed from that part of the decree which awards to the child or children of Ann Jenkins, after the life annuities shall cease, the principal of the fund invested; and in our opinion that part of the decree is erroneous, and must be reversed.

In the view