78 Iowa 73 | Iowa | 1889
“(Signed) Joseph S. Howard. [Seal.]”
The. plaintiffs pray that the will may so be interpreted as to determine the following matters: “ (1) What interest said Samantha Howard has in the real, and what in the personal, estate of testator. (2) What disposition, if any, testator has made of the fee of his real estate in case said Samantha Howard shall remarry before the youngest of the minor defendants attains his legal majority. (3) What interest plaintiff Marion C. Howard has in the real, and what in the personal, estate of testator. (4) What interest plaintiff George S. Howard, as assignee of Addison J. Howard, has in the real, and what in the personal, estate of testator. (5) What disposition of the sum of two thousand dollars is made, when it shall be deducted from the shares of Addison J. and Alonzo W. Howard. (6) Whether the personal estate of testator is to be kept intact upon the premises where the same now is, and in what manner it is to be controlled and invested during the minority of the five minor defendants. (7) What disposition, if any, has testator made of the fee of his estate ? And if it be found that said will is doubtful, uncertain, and not to be clearly understood and readily executed, that it be declared null and void, and set aside, and testator’s estate administered as intestate property.”
II. Attention to the will clearly reveals the purpose of the testator to so dispose of his property as to induce his wife and children to keep the family unbroken until the youngest child shall become of age. It also reveals the fact that the testator entertained no purpose of attempting to do what the law forbids, i. e., defeat the right of the wife to any part of his estate as is secured to her by law. The testator, doubtless being
III. Now, surely, the wife cannot hold her distributive share under the law, and also hold under the will. This would defeat the intention of the testator by giving her absolutely one-third of the estate, and the use of one-sixth of the two-thirds until the youngest child becomes of age, when he intended she should use with the minor children the property ; thus receiving one-sixth of the whole until the majority of the youngest, when she should take her distributive share. The wife’s refusal to take under the will utterly defeats the intention of the testator as to the enjoyment by the hi'inor children of the whole estate with their mother until the majority of the youngest. .The provision of the will as to the wife cannot be enforced. This defeats the testator’s intentions upon which was based the provisions intended to keep the family together, namely, the withholding a distribution of the property until the youngest child becomes of age. It appears to us that the provision for the joint use of the property, and its