36 Iowa 273 | Iowa | 1873
— This case involves the construction of the last will and testament of Frederick Fleischman, deceased, a copy of the material part of which is as follows :
“ Burlington, Des Moines Co., Iowa.
“ Being of sound mind, I, Frederick Fleischman, make my last will and testament as follows, to wit: After my decease, my wife, Margaretta Fleischman, shall be fully entitled to the property of which I die seized, to use and dispose of the same as she may please. After her death my daughter Elizabeth Fleischman shall have the whole property, and of this property she shall give to my daughter Susanna Fleischman $500; my daughter Elizabeth shall also give to her sister, or my daughter Margaretta Fleischman, $500. If, however, my wife shall be compelled to diminish the property so that after her death the property is less than at present, then my daughters Elizabeth,
The will was admitted to probate in the circuit court of Des Moines county, on the 6th day of February, 1871. On the 28th day of September, 1871, the widow, claiming to be sole legatee under the will, conveyed the real property in controversy to the plaintiff.
The question presented for decision is, whether the widow took a fee or a life estate in the property devised.
The will uses the general term “ property,” which includes personal and real property. Eevision of 1860, § 29, subd. 10. So that all the property, of which the testator died seized, would pass by the will.
Under our statute the term “heirs,” or other technical words of inheritance are not necessary to create and convey an estate in fee simple. Rev., § 2208. If, therefore, the question depended alone on the first clause in the will, there would be no doubt that the widow of the testator, would take the real estate in fee simple and the personal property absolutely. The language of this clause: “ After my decease, my wife, Margaretta Fleischman, shall be fully entitled to the property of which 1 die seized, to use and dispose of the same as she may please,” would, if standing alone, put it beyond question that a fee simple, an absolute and unqualified estate was intended, and would, under our law, vest in the widow upon the death of the testator. In order, however, to arrive at a correct construction we must take into consideration the entire instrument and ascertain therefrom, if possible, the real intention of the testator. “ The intention of the testator is the first and great object of inquiry, and to this object technical rules are, to a certain extent, subservient,” and when such intention is ascertained it is the “ pole-star by which the courts must steer.” 4 Kent’s Com. 534, 535; Smith v. Bell, 6 Pet. 80; Boyd v. Strahan, 36 Ill. 359. The courts have gone farther in ascertaining and giving effect to the intention oi the testator in cases of wills than in respect to any other class of written instruments. Id.
The second clause in the will before us, which is as follows: “After her (the widow’s) death, my daughter Elizabeth Eleischman shall home tlie whole property, and of this property she shall give to my daughter, Susanna Eleischman, $500; my daughter Elizabeth shall also give to her sister, or my daughter Margaretta, $500,” would seem to manifest a different intent from that of the first clause. The intent to be gathered from these two clauses is, that the widow should take a life estate only, and the daughter Elizabeth a remainder in fee, for upon no other theory could these clauses have force and effect, and it is a canon of construction that that construction will be adopted, if practicable, which will give effect to the entire instrument.
This second clause of the will which gives the whole property to Elizabeth after the death of the widow, and charging upon the daughter the payment of cei’tain legacies to her two sisters, if given effect, manifests an intention on the part of the testator to pass the fee to Elizabeth. Fox v. Phelps, 17 Wend. 393; Jackson v. Merrill, 6 Johns. 185; Jackson v. Bull, 10 id. 148; Jackson v. Martin, 18 id. 31.
There are numerous cases of wills containing clauses similar in substance with the first and second in this case, holding that the widow took but a life estate under the first clause, and that a fee passed to the devisee by the second clause. Smith v. Bell, supra; Boyd v. Strahan, supra; Seigwald v. Seigwald, 37 Ill. 435; Bergan v. Cahill, 55 id. 160; Schoonmaker v. Stocton, 37 Penn. St. 461; Musselmans’ Estate, 39 id. 469.
Does the third clause of the will in this case qualify or change the intention manifested by the two former when standing together without the third ? It is as follows: “ If, however, my wife shall be compelled to ctiminish the property so that after her death the property is less them at present, then my daughters, Elizabeth, Susanna and Margaretta, shall divide the property, and Elizabeth shall have two shares and the others one share.”
By the language here used, it is clear the testator contemplated that, under the first clause of his will, he had conferred upon his widow such a title in the property as, that after his death she would have the power to diminish it, so that at her death it would be less than when she should receive it. Not only so, bnt he evidently contemplated that it might be so materially diminished that it would be unfair to require Elizabeth to pay $500 to each- of her sisters for the remnant of the property, and hence he directs a division of what should be left at the death of his widow. Now, if wé restrain and limit the language of the first clause of the will so as to mean that the widow should have only such power of disposal as a tenant for life might have, then clearly she could not make any disposition that would diminish the property, especially the land. The language of this last clause cannot be fairly construed to mean, that if the widow in the use thereof shall ren
The widow having disposed of the land in controversy to the plaintiff, as she had the power to do, the plaintiff took a good title thereto as against the other devisees named in the will.
It is urged in argument that the widow’s right to dispose of the property depended upon the contingency that she was “ compelled ” to do so for her maintenance, and that to justify her conveyance it must be shown that such contingency has happened. It seems to us quite clear that the testator intended to leave this matter to the discretion of his widow, when he said, by his will, that she “ shall be fully entitled to the property of which I die seized, to use and dispose of the same as she ma/y please?
Reversed.