180 Iowa 1210 | Iowa | 1917
“Second. I will, bequeath and devise to my beloved wife, Almena Elizabeth Gardner, the following real estate, to wit: Lot Number one (1), in Block No. five (5), in Richardson’s Addition to Leon, Iowa, the same being the homestead now occupied by myself and wife. I also bequeath, devise and give unto her my beloved wife, one half in value of all the real estate and personal property, including moneys and credits of every kind arid description of which I may die seized, saving and excepting the house and lot hereinafter bequeathed and devised to my beloved son, Charles Edgar Gardner.
“Third. I will, bequeath and devise to my beloved son, Charles Edgar Gardner, the following real estate, to wit: Lot No. two (2), in'Block No. five (5), in Richardson’s Addition to Leon, the same being the property now occupied by him as a homestead. I also give, devise and bequeath unto my beloved son one half in value of all the real estate and personal property, including moneys and*1213 credits of every kind and description, of which I may die seized, saving and excepting the house and lot hereinbefore devised to my beloved wife. Provided however, the portion ¿of my estate herein willed, devised and bequeathed to my beloved son, Charles Edgar Gardner, is on condition, that if he should die without issue, living, .then the portion of my estate devised and bequeathed to him shall revert and lgo to my Jieloved wife, Almena Elizabeth Gardner.
“Fourth. That at my death, in case my beloved wife and son oannot agree upon a division of the property of which I may' die seized, then it is my will and wish that each shall select a good man to make division of my estate between my said beloved wife and son, and in case the two so selected cannot agree upon a division, then the two so selected shall select a third person who shall assist in making such division of property, but the persons so selected to make such division of my estate, as herein directed, shall before entering upon their duties go before the clerk of the court and take oath to discharge their duties as such referees to the best of their knowledge and understanding.
“Fifth. Having full faith and confidence in my beloved wife, Almena Elizabeth Gardner, and my beloved son, Charles Edgar Gardner, it is my will that they act as executrix and executor of my last will and that they so act without giving bond or taking out papers of administration, or being put to any expense save and except the probating of this my last will and testament.
“In Witness Whereof, I have hereunto signed my name this 6th day of November, 1886.
“II. D. Gardner.
“Witnesses: Frank Gardner, Will .Gardner.
“Codicil — After due consideration I have concluded to have my administratrix and administrator give bail for the*1214 faithful performance of their duties, and take out letters of administration.
“R. D. Gardner/'’
Prior to the date of this will, the son, Charles E. Gardner, had married Carrie Guilford. The' evidence tends to show that the relations between the testator and his son’s wife were not altogether harmonious or pleasant, the testator being inclined to the view that the daughter-in-law was extravagant and wasteful. The son outlived his father, and died intestate and childless February 3, 1915, survived by his wife, Carrie Guilford Gardner. Some years before the death of the testator, Carrie Guilford Gardner became of unsound mind and has never recovered therefrom. Shortly before the son’s death, a written contract was entered into between him and his mother, Almena Elizabeth Gardner. As this writing is in some respects obscure, and an abbreviated statement of its general effect is somewhat difficult, we extend this statement for its quotation in full, as follows:
“Agreement of Settlement.
“Know all men by these presents, that whereas, one R. D. Gardner, husband of the undersigned, A. E. Gardner, and father of the undersigned, C. E. Gardner, they being his sole and only heirs at law and legatees, did on the 6th day of November, 1886, make and execute his last will and testament, giviDg to the said A. E. Gardner, his widow, Lot one in Block five, Richardson’s Addition to the Town of Leon, Iowa, the same being their homestead, and the undivided one half in value of all the real estate and personal property, including moneys and credits of every kind and. character of which he might die seized, and whereas, the said R. D. Gardner did in said instrument give to his son, C. E. Gardner, Lot two in Block five of Richardson’s Addition to the Town of Leon, Iowa, and the undivided one*1215 half in value of all of the real estate and personal property, including moneys and credits, of every kind and description of which he might die seized, upon the condition that the part willed to the said G. E. Gardner should, if he should die without issue living, be devised, bequeathed and revert to his said wife, A. E. Gardner, and whereas, said will was duly probated on the 25th day of March, 1913, and recorded in Book 8, page 111 of the Probate Records of the District Court of Decatur County, Iowa, and whereas, the said C. E. Gardner is now in ill health and no settlement or distribution of said property ever having been made by and between the said A. E. Gardner and O. E. Gardner, and that the same consists of a large amount of real estate, to wit: 1,226 acres of land in Decatur County, Iowa; certain residence properties in the town of Leon, Iowa, and a large amount of moneys and credits amounting to about the sum of $10,000.00 or more, and that said parties hereto are desirous of settling said «matters amicably, and to the best interests of both,
“It is now therefore agreed that the said C. E. Gardner is to have and retain in his own right and name all of the property to which the title now stands in his own name, for his own use and benefit, and that all of the personal debts of the said C. E. Gardner shall be paid out of the estate and the proceeds thereof of R. D. Gardner. That the said A. E. Gardner is to have and retain Lot one, Block five, Richardson’s Addition to the Town of Leon, Iowa, bequeathed to her in said will, and all of the lands now standing in her own name for her own individual use and benefit, and that the remainder of said estate shall be placed in the hands of Fred Teale, as trustee, or in case/ of his inability or incapacity to act as such trustee, then someone to be appointed by the court, providing however, at all times that the said C. E. Gardner is not able on account of ill health or other inability to look after and care for*1216 said estate but that in case the said C. E. Gardner at any time is able to look after and care for said estate by reason of his physical health and strength then that the same is to be turned back into his hands for that purpose.
“That it is agreed that out of the said estate there shall be set aside a trust fund in the sum of two thousand dollars to be held by the said Fred Teale, as trustee, or in case of his inability to act, someone to be appointed by the court, and his successors, whoever they may be, and that the income therefrom is to be turned over to the Leon Cemetery Association for the purpose of caring for the lot and graves of the family of R. D. Gardner, including the parties hereto, and any other members that may be buried thereon, and, to care for the lot and graves of the mother of A. E. Gardner and others buried on said lot, and the remainder of said income to be used generally for the care and beautifying of said cemetery, said fund to be made a perpetual Trust Fund for that purpose.. That the sum of one thousand dollars shall be set aside as a trust fund to be held by the said Fred Teale as trustee, or , his successors as appointed by the court herein, the income from which shall be used for the purpose of caring especially for the lot and graves of the father and mother of Carrie Gardner, and others buried thereon, in the cemetery at Toledo, Iowa, and, any' excess after caring for said lot and graves to be used for the general care and beautifying of said cemetery. Said fund to be perpetual, and the income therefrom to be used for the purpose above set out.
“It is estimated that the real estate belonging to said estate is of the reasonable value of eighty thousand dollars, and that the personal property belonging thereto is of.the reasonable value of about ten thousand dollars, making a total in value of some ninety thousand dollars.
“That in case of the inability or incapability of the said C. E. Gardner to continue active charge of said estate »*1217 and property, that the said Fred Teale shall be' chosen as trustee thereof, and shall continue and conduct the affairs of the same, but that in case the said C. E. Gardner at any time is able to look after the affairs of said estate, that the same is to be returned to his possession, custody and control to be continued as he and his mother may agree.
“That while the same is in the hands of said trustee there shall be set aside and used for the use and benefit of Carrie Gardner, wife of the said C. E. Gardner, in case she survives him, the sum of sixty-five dollars per month as long as she shall live, and, that the remainder of the income from said property shall be turned over to A,. E. Gardner, after paying the expenses of said trusteeship, to be used by her as she may desire.
“That this agreement does not include any of the personal property or real estate actually belonging to the said A. E. Gardner or C. E. Gardner, and that the final disposition of said property shall be made by the parties C. E. Gardner and A. E. Gardner as they may hereafter agree, the same to be done by will or proper instrument as their attorney may determine.
“It being expressly agreed and understood that in case the said C. E. Gardner shall survive his mother, A. E. Gardner, that no will shall be made by her, willing or devising the property of said estate or her interest therein, excepting that may be made by the agreement of the parties hereto hereinafter entered into, but that the same shall revert absolutely to the said C. E. Gardner to be devised and disposed of by him as to him may seem proper and best at all times taking into consideration the arrangement that may be made between him and his mother with reference thereto.
“This agreement is made at this time on account of the illness of C. E. Gardner, • and in case of his recovery and ability to take charge of and handle said estate, is to*1218 be of no further force and effect, unless the same shall be approved or in any manner changed by the parties hereto.
“Witness our hands this 16th day of January, 1915.
“A. E. Gardner.
“O. E. Gardner.”
After the death of Charles E. Gardner, differences of-opinion having arisen between his mother, Almena Elizabeth Gardner, and the guardian of his -widow, concerning the proper interpretation and legal effect of the will of E. D. Gardner, this action was brought to determine and settle the same.
On the first theory, the guardian’s ward, Carrie Guilford Gardner, as widow of Charles E. Gardner, is entitled to a statutory distributive share in the property which was thus acquired by her in her husband’s lifetime. On the other theory, the condition of title in Charles E. Gardner having failed, the entire property passed under the will of his father to Almena Elizabeth Gardner, and the widow of the son has no dower or distributive share therein. The trial court sustained the latter contention, and the guardian appeals in his ward’s behalf.
I. Appellant’s brief has been prepared with entire disregard of our rules, but we have examined it with care to ascertain as clearly as may be the points relied upon for a reversal of the judgment below.
Tt is first argued that our prior decisions furnish controlling precedents for construing the condition in this will as having reference exclusively to the possible death of the son in his father’s lifetime. Upon that point, our attention is called to Blain v. Dean, 160 Iowa 708, Talbot v. Snodgrass, 124 Iowa 681, and other cases of that class. “None of these cases is quite in point. In the case at bar, while the initial sentence or clause of the third paragraph of the will is framed in general terms, which, standing alone, divorced from the modifying term's which follow in the same connection, Avould confessedly be sufficient to vest fin the devisee an absolute fee, yet attached thereto, as part and parcel of the same paragraph, is a clear and unequivocal condition that the right and title so devised will become absolute only on the death of the devisee leaving living issue, and that upon failure of such condition the entire property shall vest in the testator’s widow. In the Blain case, the provision Avas, “If any of my children shall have died leaving no issue, I direct that his share shall be divided among those leaving issue and among my other children then living.” Here it is too clear for reasonable question that the words, “shall have died,” and “then living,” have direct reference to the time when the will became effective, that is, at the death of the testator. It provides nothing
There is nothing in any other paragraph of the will nor in the instrument as a whole to give rise to any ambiguity, and the court is not authorized to override any of its provisions by construction. That such is the well settled doctrine of the law of wills, see Collins v. Collins, 116 Iowa 703; Estate of James, 146 N. Y. 78, 100; Wilhelm v. Calder, 102 Iowa 342; Wilson v. Linder, (Idaho) 110 Pac. 274; Barrett’s Estate, (Neb.) 123 N. W. 299; Britton v. Thornton, 5 Sup. Ct. Rep. 291; Spencer v. Spencer, (Ill.) 109 N. E. 300; Calvin v. Springer, (Ind.) 63 N. E. 40.
We discover nothing in the will of Dr. Gardner which seems intended to vest the son with any other or greater power or authority than such as the law attaches to the ownership of a conditional or defeasible fee.
Much has been said in argument of the circumstances surrounding the testator and of the relations between himself and wife on the one hand and the son and son’s wife on the other, but we find nothing therein which justifies us in giving to the language of his will any other than its plain and natural import and meaning, and this we think necessitates an affirmance of the conclusion reached by the trial court.
For the reasons stated, the judgment appealed from is • — Affirmed.