139 Iowa 657 | Iowa | 1908
Lead Opinion
Lars Weien made and executed a will, the body of which was in tbe following words:
In the name of tbe Lord Amen. I, Lars Weien, of tbe township of Fairview, county of Shelby and State of Iowa, being of sound, disposing mind and memory, and of full age, do hereby make, publish and declare this my last will and testament, hereby revoking all former wills made by me.
First. I direct tbat my body be decently buried in a manner suitable to my circumstances in life, as to such worldly estate as it hath pleased God to bestow upon me, and I dispose of. tbe same as follows: First. I direct tbat my executors shall pay my funeral expenses and all my just debts as speedily as possible, after my decease, out of my personal property if the same be sufficient therefor, it being my express desire that no charge be made against any real estate I may be possessed of, until my personal property be first exhausted. Second. I give, devise and bequeath to my beloved wife Mette Pethrine Weien, all my estate, both real and personal, in whatever it may consist or wherever it may be situated at my decease, to be by her used and disposed of during her natu*659 ral life precisely tbe same as I myself might do were I living; and giving my wife full power to sell, exchange, invest and reinvest the same, in the same manner I might do if living and to distribute the same by gift or otherwise among my children, as she shall deem best and proper, and 'to allot the same among my children by will after her decease according to her own best judgment and discretion.
On the same day, and evidently as part of the same transaction, Mette Pethrine Weien, wife of said Lars Weien, made and executed a will in the same language and form, except that she is named as testatrix, and her husband as the beneficiary. Thereafter the wife died, leaving no property or estate. Later the husband died. After his death both wills were duly admitted to probate, and one George Iiaward was in each instance appointed administrator with will annexed. In due time Haward presented his final report as administrator of the estate of Lars Weien, showing a balance in his hands for distribution, after paying all claims, of $1,375.65. He also showed that the persons listed as heirs of Lars Weien and heirs of Mette Pethrine Weien were identical, but that one M. -J. Larson had appeared, claiming to be a son and heir of the husband, but not of the wife. Of the right and claim of Larson, the administrator being unable to speak with knowledge, he asked that it be determined by the court. Larson entered an appearance to the proceeding, and offered evidence in support of his claim to be an heir, and of his right to share in the distribution of the estate. After hearing the evidence the court found that said Larson was a son and heir of Lars Weien, but concluded, as a matter of law, that the effect of the will was to devise an absolute estate, in all of said testator’s property, to his wife, and although she died first, yet, by virtue of the statute (Code, Sec. 3281) the devise inured to the benefit of her heirs alone, and the
In Law v. Douglass, supra, it is said: “Having given her the property with unlimited power of disposition, nothing remained to be disposed of to another.” That this was testator’s intent appears from the fact that he did not think he had anything left; for he did not undertake to dispose of a remainder, nor did his will contain the usual residuary clause to cover anything which might be undisposed of. This is not a case where a limited estate is granted, with power of disposition added as a subsequent gift, but is of an absolute estate, with full power of use and disposition. This distinction is clearly pointed out in Van Horne v. Campbell, 100 N. Y. 287 (3 N. E. 316, 771, 53 Am. Rep. 166), and with this in mind all of our recent cases, with possibly one exception, may be harmonized. This matter is also explained in Steiff v. Seibert, 128 Iowa, 746. See, as further supporting our conclusions, Meyer v. Weiler, 121 Iowa, 51; Luckey v. McCray, 125 Iowa, 691. It is useless to attempt a review of our own cases, or to quote therefrom in support of the rules here announced; and it goes with, out saying that authorities from other States are of no importance whatever when it appears that the decision is ruled by our own previous pronouncements upon the very question at issue. The salient points in the case are, first,
The decree is correct, and it is affirmed.
Dissenting Opinion
(dissenting). — I sincerely regret the confusion which has for. some years existed in the decisions of this court on questions involving the construction of wills. The effect of the majority opinion is, in my judgment, to make that confusion “worse confounded,” and engender an infinite amount of hairsplitting in the future to preserve our record for judicial consistency. The right of every person, subject to statutory regulation,
But these exceptional precedents have nowhere been sufficient to arrest the general tendency of the. courts to observe and effectuate the will of the testator according to its clear intent, until, by the majority opinion in this case, this court surrenders itself to their reactionary influence. Moreover, as I shall demonstrate, the holding is directly at variance with our own oft-repeated decisions, and with the clearly expressed views of nearly every member of this court. It is idle for us to assert that by the instrument before us the testator intended to devise to his wife the fee of his estate. .There is nothing in the record to indicate that he or the person who drew the will was not a man of ordinary intelligence, and if he intended to confer upon her the fee of the property, it was easy enough to say so in explicit terms. The words employed in the devise are those in ordinary use, and wholly unobscured by expressions or phrases of technical or doubtful construction. Reduced to briefer terms, its provisions are -as follows: First. It gives the estate to his wife to be by her used and disposed of, during her natural life, as freely as the testator" might do if alive. Second. It gives her the power to sell, exchange, invest, and reinvest the proceeds of the property. Third. It gives her the power to distribute the estate among the testator’s children, by gift during her lifetime, or by will at her death, in such proportion as she may decide:
To hold that such a devise gives to the wife absolute fee to the property is to disregard a multitude of precedents, including our own, and to say to every person de
The next reason assigned by the majority for its opinion is said to be that, after the provision for the benefit of his wife, the testator evidently “did not think he had anything left, for he did not undertake to dispose of the remainder, nor did his will contain .the usual residuary clause to cover anything which might be left un-disposed of.” Let us see. If I read the will aright, a remainder is provided for. After making provision for his wife’s life use and enjoyment of the property, the testator confers upon her the power to distribute the remainder among her children. In other words, his children are by the will given the remainder at the death of the wife, subject only to her power to provide, not the kind or quality of their estate, but the shares or proportions in which they shall take it. She had no authority or power to give or devise the property to any other person or class of persons, and if she undertook so to do, or make a distribution which ignored any one or more of the testator’s children, her act would be void. Clay v. Small-
The argument against the existence of a life estate, drawn from the absence of a residuary clause, is clearly unfounded, for the will by its express terms disposes of “all of the estate, both real and personal, in whatever it may consist or wherever it may be situated,” first to the wife and after her death the remainder to his children. In other words, having devised his entire estate to designated beneficiaries, there could be no residuum, and a residuary clause could have had no effect, except to involve in confusion a will otherwise clear and unambiguous. Again, it is said that the will does not attempt to devise an estate for life. If this is true, then I concede the correctness of the majority opinion, for the rule is well established that if a general or indefinite estate be devised, and this is followed by a gift of unlimited power of disposition, the .devise amounts to a fee, but it is no less well established that, if an estate for life is given, no added power, however extensive, will make the devise anything more than a life estate. But the assertion that the will does not attempt to devise a life estate is inexplicable and indefensible, unless we are authorized, to
In our own cases, as will be seen by those to which I have already called attention, language of the same general purport has received like construction. Still, again, we are told by the majority that the devise should be construed as a fee, because “the power of disposition is full, absolute, and adequate, and covers all- methods known to the law.” Again it is said that “the devisee disposed of her estate, as she was authorized to do, according to her own judgment and discretion, and- not according to the will of the testator, save as she was given full power of disposition covering all methods known to the law,” or to “dispose of the estate according to her own judgment and discretion, and not according to the judgment of the testator.” But, as I have shown, her power to affect the estate by will is expressly limited to the apportionment of the remainder among the testator’s children. This limitation of the power of appointment is one of the well-defined and often recognized tests by which the devise of a life estate with added power is differentiated from a fee arising by implication from the nature and extent of the, power conferred, not that unlimited power of disposition is necessarily inconsistent with a life estate in the devisee, but because a limitation upon the power of disposition is absolutely inconsistent with a fee. See McClure’s Will, 136 N. Y. 238 (32 N. E. 758); Crew v. Dixon, 129 Ind. 85 (27 N. E. 728); Henderson v. Blackburn, 104 Ill. 227 (44 Am.
In Welch v. Bank, supra, the testator gave his wife “independent and uncontrollable use and benefit” of his estate, with power to divide the remainder among his children; and, in construing the will, the court says that the power given to divide among the children “strongly negatives a purpose, on part of the testator, to authorize her to dispose of the estate in any other manner, or to any other persons.” The further observation in the majority opinion that, “if a life estate only was granted, she had no power to will it to any one, and if she was given power to will it to whom she might see fit, she certainly had something to will,” demonstrates, it seems to me, not only the failure of the majority, already noted, to notice the explicit terms of the will, but an entire failure to consider or give effect to the rules of law governing testamentary powers. As I have already pointed out, the iterated and reiterated assumptions of the majority that the will gave the wife power to devise the property to whom she might see fit is incorrect. She is given no power to devise any part of the property, but simply the right to direct the distribution among the testator’s children, who take as the devisees and legatees of their deceased father, and not under the will of the widow. A testamentary power, however broad or extensive, is just what its name' implies — a power or authority, and not an estate, nor does it imply ownership. Burleigh v. Clough, 52 N. H. 267 (13 Am. Rep. 23); Eells v. Lynch, 8 Bosw. (N. Y.) 465.
If the power be special or limited, it may not be exercised only to the extent prescribed in the gift or grant, and in favor of the person or class for whose benefit it was conferred. Any attempt to control the property,
In the cited ease the provision for the wife’s benefit was in these words: “I devise and bequeath all of my property, both real and personal, to my wife, to use or dispose of in any manner she may think proper during her lifetime and at her death, may by will dispose of the same between my children and grandchildren as she may think proper.” It will be observed that, though couched in somewhat more concise terms, this devise is, in every essential respect, a complete parallel of the one we are now considering. There, also, as in the present case, -the wife sought by her will to dispose of the property in disregard of the restrictions in the devise to herself. The court construes the husband’s will as giving the wife a life estate, and conferring no authority to dispose of the property by will, except to the persons or classes mentioned in the devise. On this subject the court says: “But she has not made the appointment in accordance with the terms ’ of the power. She was to appoint the property among the donor’s children and grandchildren as she might deem proper. Under such provision both children and grandchildren take. . . . Under the terms of her husband’s will the testatrix was not at liberty to exclude any of his children or grandchildren. The power was not an exclusive one. While she had the discretion as to the shares to be given them,, she was bound to give each child and grandchild a portion.” To the same effect see Huston v. Craighead, 23 Ohio St. 198. But, even if the power given the wife in the present case were as broad and general as the majority incorrectly assume, it still remains a power, and not an estate, and, as I have shown, not inconsistent with her life tenancy. We have ourselves so held where a will gave the life tenant a power to dispose of the property, “by gift or will, as absolutely as she might do were it her own.” Steiff
The attempt made in the opinion to neutralize the effect of the testator’s words “during her natural life,” by saying: “Of course she could do nothing with the property after her death” — is at best a play upon words. It is, of course, literally and inconveniently true that human activity ceases with life. We' have the word of the wisest man of the ages that: “There is no" work, nor device, nor knowledge, nor wisdom in the grave whither thou goest.” But if the. words “during her natural life” are not a proper expression for the limitation of a life estate, as well as for a limitation upon the added power of disposition given to the life tenant, then I freely confess my ignorance of our mother tongue. While the power of disposition by the fee owner or life tenant ends with life, the will and purpose of the former, expressed or formulated in his lifetime, may be made operative and effectual after his death. He may, under our statute,. create an estate to begin in the future. He may provide for remainders, and for their extinguishment, and in numerous ways may direct or restrict the course which the title to his property shall take after the term of his natural life. Not so with the life tenant. His right is a right of mere use, occupancy, or enjoyment which, in the very nature of things, ceases with his life. He can in no manner or degree control or direct the course of the property or any interest therein after his death, except it be in the exercise of some power of appointment conferred upon him in express words, or by necessary implication, in the grant or devise by which the life estate was created. It is therefore not a meaningless or redundant clause of the will which limits to her natural life the power of the life tenant to dispose of the property.
To one other feature of the opinion I desire to enter
My abiding conviction that the conclusion of the majority is erroneous in principle, and destructive of the fundamental right of testators and devisees to have wills construed according to their plain,, intent, is my only excuse for this dissent.
I think the judgment appealed from should be reversed.