249 N.W. 166 | Iowa | 1933
Mary Stanley Horak, on November 4, 1931, died testate without issue, survived by her husband, appellant herein, and two brothers. The controversy is as to the estate devised by her will, which is as follows:
"Mary Horak 10-23-31.
"I wish to leave my husband, Fred Horak, all property both real and personal, for his perfectly free use during his lifetime. *319 There are a few family heirlooms that I want handed unto my nephews and niece, Robert Maurice Stanly, James Sidney Stanly and Catherine M. Stanly.
"Mary Stanley Horak.
"Witnesses
"Alice I. Ross
"Lucy Findull."
It is the claim of appellant that the foregoing instrument devised the fee to the real estate to him. The question is a somewhat narrow one and involves only the ascertainment of the intention of the testatrix. The will was written by a layman without regard to technical legal accuracy. The intention of the testatrix must be gathered from the instrument which is obviously without any ambiguity. The devise is of the perfectly free use of the real and personal property of the testatrix during the lifetime of the devisee.
It is contended by appellant that a gift of real estate for life without a gift over passes the whole estate to the devisee. This contention assumes too much. It overlooks the cardinal rule of construction which is the ascertainment of the intention of the testator. If the devise be construed as to a life estate only, intestacy as to the fee follows as a matter of course. Wills will be construed, where it is possible to do so and give full effect to the intention of the testator, so as to avoid intestacy. We said in Busby v. Busby,
"The voice of authority is against the presumption of partial intestacy by intention; and where possible such construction will be given a will presented as to work disposition of the entire estate."
This rule is not, however, one of law, but a rule of construction in aid of the discovery of the testator's intention. In re Rogers Estate,
The intention of testatrix to give her husband the life use of all her property, real and personal, is clearly expressed in the instrument. It will permit of no other reasonable construction.
Reliance is placed by appellant upon Lachmund v. Moore,
KINDIG, C.J., and ANDERSON, KINTZINGER, and MITCHELL, JJ., concur.