159 Iowa 332 | Iowa | 1913
It appears from the record in this cause that on the 23d day of April, 1909, Joseph Elberts died seised in fee of the following described real estate: N. W. &nd the N. % of the S. W. % of section 21, township 97, range 47, in Sioux county, Iowa. That at the time of his death he left surviving him three children, Aloysius Joseph Elberts, Josephine Anna Marie Elberts, and Ludwig Joseph Johan-' nes Elberts. That he left a will, the material portions of which are as follows:
Par. 3. I give, and devise to my said three children, the following real estate, to wit (being the real estate hereinbefore described); to be divided equally between them, share and share alike, they to have and to hold the aforesaid real estate to themselves and to their heirs and assigns forever.
Par. 4. I give, bequeath and devise all the rest and residue and remainder of my personal estate, or real property, wherever situated or located, to my said three children, to be equally divided between them, share and share alike.
Par. 5. I hereby direct and order that "my farm, on which I am now living, being the real estate hereinbefore described/ and bequeath, to be, held intact and not disposed of, sold or divided until my youngest son becomes of the age of twenty-one years, or in case of his death before that age, said farm shall be kept intact, unsold and undivided, until October 7, 1919.
And I hereby direct and order that my estate be not finally closed until the 7th day of October, 1919, and. that my executors have full charge of my said real estate, renting the same, collecting the rents, paying'the taxes, etc., giving to my said executors exclusive jurisdiction to fully and completely manage said real estate, until October of the year 1919, the same as I would if I were still living, and I hereby direct that my said executors, after paying the necessary expenses and charges in caring for said farm, to divide the net proceeds each, year equally between my said three children. However, I direct my executors to maintain a home on the said farm for my children, by hiring a housekeeper, or otherwise, for them, if the same can be done to the best interests of my said children. Otherwise to manage, rent or*334 so handle the said farm as will be for the best interest of my estate amd my children.
I hereby nominate E. C. Suter and E. E. Coyer executors of this will.
Said will was duly probated, and the executors so nominated were by the court duly appointed executors of the will, and qualified and entered upon the discharge of their duties, as such, under the will.
On the 21st day of December, 1911, this action was commenced by Aloysius Joseph Elberts, one of the devisees in the will against the other devisees and the executors so appointed by the court, asking partition of the real estate so devised, and that, if it cannot be equitably divided, the same be sold and the proceeds divided. To the petition of the plaintiff a demurrer was interposed by the defendants on the ground that it affrmatively appears that the plaintiff is not entitled to the relief demanded. This demurrer was by the court overruled, and from this ruling the ease comes on appeal to this court.
A proper determination of this case and the controversy arising herein involves a construction of the will hereinbefore set out and a determination of the effect of the will on the rights of the parties in and to the real estate therein devised, as the same existed at the time this action was commenced. The first duty, therefore, is to determine, from the terms of the will itself, the intent of the testator and to carry the same into effect, unless, under well-recognized canons of construction, there be some insuperable objection thereto.
This all courts endeavor to do, but there are, however, some fundamental rules of construction so well settled and
It has, however, been held, and is the settled law and policy of this state, that even though the grant or devise be in fee, and although, in the clause making the grant, there is no limitation, yet, when a subsequent limitation does not destroy the grant or affect the title passing under the grant, conditions may be imposed upon the estate granted which limit only the enjoyment of the thing granted, or the right to control or enjoy it, for a limited period. We come now to the real.controversy in this case.
Third paragraph of the will, hereinbefore set out, gives to the children of the testator a fee-simple title to the land devised. Paragraph 4 confirms that title in them. The question is, Is paragraph 5 such a limitation upon the grant made in the third and fourth paragraphs of the will that
The clearly expressed intent and purpose of this testator was to give to his children the fee title to the land devised. It was just as clearly his intent and purpose, and just as clearly expressed in the will, that the physical eontrol of the thing devised should not pass into their hands until the year 1919 ; that the physical control of the property devised during the intervening period should be in the hands of the executors named by him in his will, his children receiving only the beneficial interest arising from the thing devised until that time. This provision is not a limitation upon the fee, is not repugnant to the provisions of the will granting the fee, and is not in any way inconsistent with the passing of the title granted to the objects of his care. See Iiames v. Neidt, 101 Iowa, 348; Jordan v. Woodin, 93 Iowa, 453; Wheeler v. Long, 128 Iowa, 643, and cases therein cited; Smith v. Bell, 31 U. S. (6 Pet.) 68 (8 L. Ed. 322).
It is said in many cases the intention of the testator is the polar star to guide us in the construction of wills. See Matter of James, 146 N. Y. 100 (40 N. E. 876, 48 Am. St. Rep. 774), and eases cited.
It may be argued in this qase, with much apparent reason, that as the third and fourth clauses of the will give to the devisees the full and absolute legal title to the property, and the fifth clause gives to them the full beneficial interest therein, there is no occasion for the intervention of a trustee; that there is no good reason apparent why the court should continue a trust in the executors. But who knows? Does this court ? The testator knew his children; it was his property; he made the limitation, no doubt with reason and judgment. Many reasons may have been present with him, at the time, that influenced his judgment. He had a right to determine who would be the objects of his bounty. So he had a right to determine how and in what way they should receive and
We think, therefore, that the plaintiff’s action for partition ought not to be allowed, and the court erred in overruling defendant’s demurrer to plaintiff’s petition, and the cause is therefore Reversed.