159 Iowa 692 | Iowa | 1913
Zachariah H. Goldsmith died in 1854 testate and seised of lot 8 in block 8 in the city of Davenport, and other property. A widow and two children, John M. and Mary Mildred Goldsmith, survived him. His will was admitted to probate, and in 1866, in an action to which all named devisees were made parties, John M. and Mary Mildred Goldsmith, as plaintiffs, procured the entry of a decree so construing the will as that it gave them absolute title to the abovemamed lot and other property, and in June, 1873, John M. Goldsinith and his wife Mary I., one of the plaintiffs, conveyed an undivided half of said lot to John L. Lancaster, and in March, 1873, said Lancaster and wife and Mary Mildred Goldsmith and husband, Daniel Shanks, conveyed the lot by warranty deed to Peter Fries. The defendants in the first case claim the west half of said lot and the west two inches of the east half thereof through mesne conveyances under Fries, and the defendants
Mary Mildred Goldsmith died intestate in 1882, leaving several children, some of whom are still living, though her husband has died since. The claim of plaintiffs is based on the will of Zachariah H. Goldsmith, which, in so far as material, reads: “I, Zachariah II. Goldsmith, being of sound and disposing mind and memory do make this my last will and testament in manner and form following; that is to say: I give and bequeath to my two children John Mason Goldsmith and Mary Mildred Goldsmith, the following real estate lying and being in the city of Davenport, county of Scott and state of Iowa, to wit: Lot eight (8) in block eight (8), lot three (3) in block forty-six (46), lot ten (10) in block fifty (50), lot two (2) in block forty-two (42) and-lot one (1) in block seven (7).” Clauses 2 and 3 are legacies. “(4) I give, bequeath and devise to my nephew Zachariah D. Blakistone the house with one-third part of the lot on which the same stands on the corner of Main and Seventh streets to hold to him and his heirs, as a testimonial of my regard and from a sense of gratitude for his kindness to my two children. ’ ’ Clauses 5 and 6 are legacies.
The theory of plaintiffs is that John M. and Mary Mildred took but a life estate in the realty described, with power to
By the eighth clause, these and other clauses preceding
Another possible construction is that the rents and not the realty were to be appropriated by the executor to the payment of legacies, and the right to will limited to the period of minority as intimated in the ninth clause; but, in view of the context, such a construction would not seem tenable nor in harmony with the testator’s- intention. The ninth clause proceeds on the theory, that something more than a life estate had been given to the children in the portion of the will preceding, for it is therein provided that, “should either of my children die before attaining the age of twenty-one or without having lawful issue, and without will, then the survivor shall have the entire benefit of my estate. Should both of my children die before attaining the age of twenty-o'ne years or without having lawful issue, ’ ’ the property should pass to others. The clear implication from this clause is that, in the absence of the contingencies mentioned, John M. and Mary Mildred shall take the fee, for the only force possible to be given the conditions contained therein is to render the fee, otherwise absolute, determinable. Wheeler v. Long, 128 Iowa, 643; Jordan v. Woodin, 93 Iowa, 453. As neither died before attaining twenty-one years of age, nor' without issue, this clause can be accorded no consideration other than entitled to in ascertaining the nature of the estate devised to' the children. The eleventh clause of the will provides for the care
Conditions against alienation contained in devises of this character are universally denounced as void. Ogle v. Burmister, 146 Iowa, 33; Teany v. Mains, 113 Iowa, 53. The evident design of the testator was that the devised property be retained by his children during life and be disposed of only in a manner which could not affect their, enjoyment of its use. Surely the prohibition of alienation during life may not be construed to reduce the estate in fee previously bestowed to a life estate. Muhlke v. Tiedermann, 177 Ill. 606 (52 N. E. 843).
The power to dispose of by will added nothing to the right to alienate property to which absolute title had been acquired under prior clauses in the will. “He that hath an estate, that he can will to whom he pleases, or, if he make no will, that will descend to his heirs at law, assuredly hath a fee.” Fairfax v. Brown, 60 Md. 50.
In McIntyre v. McIntyre, 123 Pa. 329 (16 Atl. 783, 10 Am. St. Rep. 529), the testator willed “to my daughter, Mary
In Byrne v. Weller, 61 Ark. 366 (33 S. W. 421), the fifth clause of the will read. “The remainder of my goods, chattels and effects of every character and kind, both real and personal, I will and bequeath to my beloved wife, Julia A. Maddox, to dispose of she may choose and desire at her death”; and the court held that: “The meaning and extent of the disposition of the residue of the estate must be found solely in the devise contained in the fifth clause of the will; and, since this language is without words expressly limiting the devise to a less estate than the fee, that the same carries the fee, and the words of disposition therein contained should take effect
These decisions are pertinent in holding that the circumstance that the power to will or dispose of at death, added to a gift of the fee, does not impair the fee but merely expresses an incident to its enjoyment. The restriction to the enjoyment and use, coupled with the denial of the power to alienate, means no more or less than such denial without such restriction. It merely makes clear the interest left in the property when the power of alienation is eliminated. The enjoyment’ of its use is all that is left. But, to the creation of a life estate, a reversion or remainder over is essential, and. none such was provided in Zachariah’s will, unless this should be created by will of the children. But they were not required to dispose of the property in any designated manner, nor to any specified person or class. They were under no obligation to execute a will, and, if they chose to do so, they were left free to do with it as they might choose. No one else was given an interest in the property. ' In the absence of reversion or limitation over, the clause prohibiting alienation was nugatory for that there was no one to insist upon obedience thereto. The children even, in event of reverter, would take the estate. Moreover, the restriction of sale impliedly indicates that the devisees owned that which was not to be sold. Having given the lots absolutely to John M. and Mary Mildred, the testator could not at the same time deny them of power of alienating the same, for such power is inherent in ownership. The gift or the denial of such power must fail, and, as we have seen, it is the latter which is held to be invalid. Law v. Douglass, 107 Iowa, 606. As said, in that case: 11 There are some things, however, which even a testator may not do and which the courts are powerless to aid him in doing, however clearly 'expressed. He cannot create fee with absolute power of disposal and at the same time clog that power by limitations over to another; in other words, he cannot include provisions which are absolutely inconsistent in terms and meaning and
Appellee also contends that the decree entered in 1866 was conclusive in this casé, basing the argument on the doctrine of virtual representation. See Bofil v. Fisher, 3 Rich. Eq. (S. C.) 1 (55 Am. Dec. 627); Gifford v. Hart, 1 S. & L. (Ire.) 386; Hale v. Hale, 146 Ill. 227 (33 N. E. 868, 20 L. R. A. 247). Also that John M. Goldsmith, having conveyed the lots by warrant deed, could not thereafter exercise the power to devise optional with him, in derogation of the title previously conveyed. See McFall v. Kirkpatrick, 236 Ill. 281 (86 N. E. 144). As we entertain no- doubt but that the trial court correctly interpreted the will, it is unnecessary to pass upon these issues. Were some right dependent thereon, or had we the leisure necessary to satisfy the curiosity expressed by appellee’s counsel, we should pass on these points also.
As it is, we are content with our conclusion that the decree in each case, for the reasons stated, should be and is Affirmed.