The question presented is whether appellant-widow takes only a third of the estate or $15,000 in value and half the excess. We affirm the trial court’s decision that appellant takes only the third.
Testator died in 1950 without issue. His will made in 1942 states in substance: “I want my wife Cecil to have all' her legal rights as to my property, which is % of my estate.
“* * * I want my brother Arthur to have the remaining % of the estate.”
A codicil made in 1946 confirms the will “save so far as any part of it is inconsistent with this codicil” and provides in substance : “In the event my brother Arthur * * * should predecease me * * * I devise all the rest of my property, that is, what is left after my wife Cecil receives her legal share of %, to my nephew, son of my brother Arthur.”
The brother Arthur predeceased testator so the remaining two thirds of the estate go under the codicil to Arthur’s son.
So far as material here, section 636.5, Code, 1950, I. C. A., provides that one third in value of all real property possessed by the husband shall go to the surviving wife. This one third is frequently referred to as the survivor’s distributive share or dower. Code section 636.5 is headed “Dower”. Section 636.7 refers to this one third as “The distributive share of the survivor.’/ See in this connection In re Estate of Finch,
Section 636.21 states, “The survivor’s share cannot be affected by any will of the spouse unless consent thereto is given
Section 636.32, so far as material here, provides, “If the intestate leaves no issue, the whole of the estate to the amount of fifteen thousand dollars * * * and one-half of all * * # excess * * * shall go -to the surviving spouse and the other one-half of said excess shall go to the parents.” (Italics added.)
What the survivor takes under 636.32 over and above her distributive share of one third she takes as an heir and not otherwise. Such additional share is subject to the will. Smith v. Zuckmeyer,
If J. E. Coleman had died intestate appellant-widow would have acquired, under 636.32, the whole estate to the amount of $15,000 and half the excess. From this appellant argues that “all her legal rights” in testator’s property, to which the will refers, are measured by 636.32.
Of course the purpose of construing a will is to ascertain the intent of the testator. In re Estate of Gisler,
It seems clear from the entire will and codicil testator intended appellant to have only a third of his estate. Both instruments expressly state she is to receive a third. Then the will gives the remaining two thirds to the brother Arthur. By the codicil this two thirds goes to Arthur’s son if Arthur predeceases testator. It is plain that under appellant’s contention the devise to Arthur or his surviving son would be rendered ineffective, at least in part. Our decision gives effect to both the entire will and codicil.
The “worthier title” rule which appellant invokes does not aid her. Under this doctrine where an heir or spouse would
The rule of the cited decisions does not apply unless the provision of the will is identical in quantity and quality with the statutory provision in the event of intestacy. Finch and Everett cases, supra, and citations therein. This will does not make the same provision for appellant that section 636.32, quoted above, would have made for her if her husband had died intestate. The worthier-title rule is therefore not applicable.
Appellant specially relies upon Tennant v. Smith,
Here the devise to appellant of a third of the estate was of course much less than she would have received under 636.32 if Mr. Coleman had died intestate. The cases last-cited are therefore not applicable. See In re Estate of Everett, supra,
In re Estate of Finch, supra,
Appellant also invokes the rule that where there is irreconcilable repugnance between different provisions of a will the first must stand and the latter be rejected. It is said the devise to appellant of “all her legal rights” clearly means such share as a spouse receives under section 636.32 and testator’s attempt to limit the gift to one third is void for repugnance.
The rule for which appellant contends is not applicable here. It is frequently applied where an absolute gift in fee simple is followed by an attempt to place some limitation on the title or otherwise to control the property. See In re Estate of Bigham,
A testamentary provision will not be held void for repugnance unless clearly so. Where it is reasonably possible to give it effect it is our duty to do so. We find no cléar or irreconcilable repugnance between the statement that testator wanted his wife to have “all her legal rights” and the explanation immediately following “which is % of my estate.” The later words were obviously intended to render certain what otherwise might be doubtful rather than to limit or qualify an absolute gift previously made in express terms. As between Code sections 636.5 and 636.32 the former more nearly defines all the legal rights of the spouse in the property of a testator than does the latter.
In support of our conclusion there is no irreconcilable repugnance in this will see In re Estate of Johnson,
Appellant also calls attention to'the rule that in case of doubt the law favors an interpretation of a will which most nearly conforms to the statutory rule of descent and distribution.
[lO] In the trial court appellant offered some extrinsic evidence in an effort to show testator intended her to have more than one third of his estate. The court apparently did not consider this evidence because he felt the will and codicil were clear and unambiguous. We think the court was right in holding that no extraneous evidence was necessary or admissible. See authorities last above, also Sick v. Rock,