In this proceeding to construe a will, trial court held a residuary bequest of trust corpus effected a per capita and not per stirpes distribution, among five beneficiaries in specific shares. We modify and affirm.
W. E. Gilchrist, age 91, died May 30, 1964. This testator was survived by his *468 wife; a nephew Wallace A. Houts; the heirs (four children) of C. C. Jameson, a deceased nephew; and two nieces, Eleanor and Dorothy Houts.
Decedent’s will, dated Steptember 20, 1957, created a life estate in the wife and provided for several specific bequests upon her death. It was then provided,
“* * * [0]f the property then remaining an undivided one-third (⅛) in value of the same in equal shares to the heirs of my nephew, C. C. Jameson, now deceased * * *, and the other two-thirds (¾) in value of the same as follows: One-third (1/3) to my nephew, Wallace A. Houts * * *, and two-thirds (⅝) to Keith Mossman as trustee * * * Jf
After establishing the terms and conditions of the trust for the' benefit of the nieces Eleanor and Dorothy Houts for their lives and the life of the survivor, the testator directed upon termination of the trust, the accumulated income and net trust property was to go,
“ * * * to the heirs of my nephew, C. C. Jameson, now deceased, * * * and to Wallace A. Houts or his heirs in the event he is not living at that time, in equal shares, share and share alike.”
'•The beneficiaries of the trust are still living.
Responding to trustee’s petition to obtain a judicial construction of the last quoted will clause, the four heirs of C. C. Jameson claimed the will clearly expressed testator’s intent the four Jameson heirs and Wallace A. Houts were each to receive, per capita, one-fifth of the residuum. Wallace A. Houts argued the will, properly construed, provided for a per stirpes distribution: One-half to the heirs of C. C. Jameson, and one-half to Wallace A. Houts or his. heirs if he is deceased on the distribution date.
Houts and one of his children (representing the class of his potential heirs) appeal from trial court’s adjudication that the five beneficiaries were each entitled to a one-fifth (per capita) share.
I. The proceeding below was properly triable in probate court as an equity proceeding. See § 633.33, The Code; In re Estate of Miguet,
The basic rules governing our consideration of this will are: (1) the testator’s intent is the polestar and must prevail ; (2) the intent must be gathered from a consideration of all the language of the will, the scheme of distribution, and the facts and circumstances surrounding the making of the will; and (3) technical rules of construction should be resorted to only if the language of the will is clearly ambiguous or conflicting or testator’s intent is for any reason uncertain. Hollenbeck v. Gray,
Testator had been county auditor of Benton county and city clerk of Vinton, Iowa. His wife had been a legal secretary for many years. The typed contents of the will were brought by Mr. Gilchrist to Attorney Mossman’s office, where the will was retyped exactly as submitted, then executed. No other relevant facts appear concerning the drafting of the will.
The bequest in question is sufficiently lacking in clarity to attract litigation. We turn to the language in the will and the surrounding circumstances to ascertain testator’s intent, and apply controlling rules of construction.
Focusing on the bequest itself, testator was obviously cognizant of and provided for the alternate possibilities of Wallace A. Houts surviving or not surviving at the termination of the trust.
If at time of distribution Wallace A. Houts is deceased, the bequest, revised to incorporate that fact but with relevant *469 words retained, would read, “to the heirs of my nephew, C. C. Jameson, now deceased, * * * and to the heirs of Wallace A. Houts, now deceased, in equal shares, share and share alike.”
The term “heirs” in a testamentary gift to the heirs of two or more persons is usually used in the sense of “children” or “descendants,” and a per capita distribution is indicated at least, where, as here, testator had used some term implying equality of division. Gilbert v. Wenzel,
In short, and in this contingency (Houts not surviving), we hold testator used “heirs” to indicate those who shall inherit and the words, “in equal shares, share and share alike” to indicate how they shall inherit. This conclusion finds support in the following cases: In re Larson’s Estate,
Assuming Wallace A. Houts survives, the reference to his heirs would be superfluous. The will provision in relevant part would then read, “to the heirs of my nephew, C. C. Jameson, now deceased, * * * and to Wallace A. Houts * * * in equal shares, share and share alike.” It would be illogical to assume the testator intended a per capita distribution in the first alternative possibility but a per stirpes distribution in the second.
Our holding is further buttressed by testator’s use of the words “in equal shares, share and share alike.” In construing wills, meaning and effect should, if reasonably possible, be given to every provision, clause and word. See In re Van Wechel’s Estate,
Appellants argue the words “share and share alike” refer to two classes designated by the testator. The words “and to” appearing in the will clause before us do not in this instance indicate a separation into classes. See In re Larson’s Estate, supra,
Words such as “equally,” “in equal shares” or “share and share alike” generally indicate an intent to distribute per capita. In re Larson’s Estate,
However, there are no “counter-indications” in this will to drain the words “in equal shares, share and share alike” of their usual meaning. Testator did not evidence an intent to treat two classes as equal. To the contrary, in the earlier provision in the will, first above quoted, he left one-third to the heirs of C. C. Jameson but only two-ninths to Wallace A. Houts. Still'more significant, the first of the two bequests referred to “shares” (plural) of the heirs of C. C. Jameson, further indicating a per capita distribution.
The language last commented on distinguishes this case from Claude v. Schutt,
The rule stating that construction is preferred which more nearly conforms to statutory descent and distribution loses some of its efficacy when beneficiaries are remote collateral heirs and not direct heirs. In re Gisler’s Estate,
Had testator intended other than a per capita distribution he could have said one-half to the heirs of C. C. Jameson, deceased, and one-half to Wallace A. Houts or his heirs in the event he is not living at that time. The bequests appearing earlier in the will indicate he was capable of such definitive and concise language. His failure to use it in the controversial bequest signifies he intended a per capita distribution, and we so hold.
II. A final problem remains. Trial court determined the balance of the funds at the termination of the .trust would be divided per capita, “one-fifth each to George Leslie Jameson, Ralph Edward Jameson, William Allen Jameson, Mrs. Betty Daniel, (heirs of C. C. Jameson, deceased) and Wallace A. Houts, share and share alike.’’ Obviously, district court’s holding for a per capita distribution while simultaneously freezing the shares at one-fifth for each of these beneficiaries cannot be approved. Such result would ignore the alternate gift provision of decedent’s will, which provided for the possibility of Houts not surviving until distribution.
We turn first to the status of the gift to the Jameson children. The general rule provides if a future gift is postponed in order to let in some other interest, the gift is vested, even though its enjoyment is postponed. Clarken v. Brown,
Generally, the law favors construing wills so as to vest interest at the earliest possible time; any doubts as to whether a legacy is vested or contingent are to be resolved in favor of vesting. Johnston v. Boothe,
There is no assurance, however, of the ultimate per capita share each shall take. If Houts survives, the shares shall be those specified by trial court. If he does not, then the shares may well be in a fractionally lesser amount. It should be noted an estate is not contingent merely because the portion, quantity or amount of property beneficiary will receive remains uncertain until a future date. Hans v.
*471
Safe Deposit & Trust Co. of Baltimore,
Turning to the Houts bequest, we believe a proper interpretation of the will would indicate testator did not intend this gift to vest unless Houts survived the trust beneficiaries. See Schau v. Cecil,
It follows the specific shares of each beneficiary cannot be ascertained until the time arrives for enjoyment of the property even though the bequests to the Jameson children are presently vested. To this extent we modify trial court’s decree. We affirm the determination that ultimate distribution shall be per capita.
Modified and affirmed.