157 Iowa 51 | Iowa | 1912
— Bor the disposal of the questions raised on this appeal, the following facts only seem to be material: In 1905, Salem Brunk executed his last will in the following terms:
Birst. I will all of my real estate and personal property to my wife Elizabeth Brunk,. while she remains my widow.
Second. If she should fail to be my widow during her lifetime, she is to have one-third of all my real estate and personal property and the balance is to be divided equally between my children, with the exception of the following: My eldest son, J. W. Brunk, is to pay the other heirs out of his part for property' received when he was married in his 21st year, four hundred dollars ($400.00) and for property and surety debts for him 'since $250.00, total $650.00. And my second son John IT. Brunk is to pay out of his part $110.00, and my third son Ira Brunk, is to pay one thousand and three hundred dollars for furniture store I furnished him with in the year 1901 and on other property and security debts. Total $1,300. My wife is to take charge of everything and use to the best of her knowledge without any bond and security, and that all that*53 is left at her second marriage or death is to be divided as stated above if there is .that much left, and if the property should decrease in the proportionment.
This will, on the death of the testator, was duly probated. On intervener’s application for a construction of the will, the court held that, not having married, she was entitled to a life estate only in' the land described in the will. Her contention is that she became the fee-simple owner, or, if not the owner in fee simple, that she had, in addition to a life estate, an absolute power of disposal of the property.
The contention for the widow is, however,- that the provisions in the latter portion of the second paragraph show the intention of the testator to have been that she was to have such absolute power of disposal as would preclude any interest of the heirs in the property, and therefore would render the estate in effect one in fee simple. But we think the language used can not be given any such construction. The widow is authorized “to take charge of everything and use to the best of her knowledge without any bond and security.” Evidently the power to take charge of and use the property is consistent with a life estate and inconsistent with an estate in fee • simple, in view of preceding provisions of paragraph 2, which
The cases of Paxton v. Paxton, 141 Iowa, 96, and Hamilton v. Hamilton, 149 Iowa, 321, especially relied upon by counsel for appellants, are plainly not in point. In both of these cases, it is conceded that even the expressed or implied addition of a power of disposal to a life estate does not show an intention to create an estate in fee simple, unless such power of disposal is .so absolute and unlimited as to preclude any limitations of the interest of the devisee dependent upon the continuance of his or her life. Plainly, in this case, power of disposal absolutely without limitation or condition is not conferred, but only a power to take and use which is consistent with, rather than repugnant to, a grant for life.
The decree of the trial court is — Affirmed.