150 Iowa 628 | Iowa | 1911
By his will and codicils thereto, James Ironside devised to each of his four sons a farm with an accompanying tract of woodland, with the condition attached to each that the devisee should pay to the widow the sum of $1,000 to be secured by mortgage on the devised property. To each of his seven daughters he bequeathed $1,000, to be paid on or before three years after his death. The only provision for his wife was found in a clause of the will reading as follows:
The remainder of the estate after these bequests are made shall be at my wife, Matilda Ironside’s, disposal, but it is expressly provided that if any of my children mentioned in this will shall die before they come in possession of their bequest, it shall revert to the estate and shall be subject to the same conditions as the estate according to the terms mentioned in the. will.
It is to be noticed that the two devises of farms to sons intervening between the first paragraph and the concluding paragraph of this ninth division of the will seem to have been inserted out of their proper connection for they are similar in purport to the devises to the other two sons which constitute paragraphs 1 and 2 of the will. No reason is suggested nor does any reason occur to us why these two devises thus included under division 9 should have other construction than would have been given them had they been included each in a separate division of the will, nor why their insertion in division 9 should in any way affect the construction of the first and last paragraphs of that division relating to the interest of the widow. We shall therefore proceed to construe the portions of the ninth division above quoted as though they constituted in themselves a separate division.
As against the construction which the court placed upon the will, the contention for appellants is that the first paragraph of division 9 plainly gives to the widow only a life estate, and that the concluding paragraph of that division does not enlarge such estate, but, if it amounts to anything as to the widow’s interest, ádds to her life estate a power of disposal, which not having been -exercised leaves the property real and personal in which
• It seems to be conceded on both sides that the “remainder” referred to in the last paragraph of the ninth division is the remainder over and above the life estate given to the wife in the first paragraph of that division. Therefore the question of interpretation hinges solely on the meaning to be given to the provision that such remainder “shall be at my wife’s . . . disposal.”
Now, it seems to us that to place property or an interest in property absolutely and without qualification at a person’s disposal, with the intention that the owner himself shall have no further right therein and exercise no further authority with reference thereto, is to pass an absolute title to such property or right thus referred to. The power to “dispose of” is equivalent according to Webster’s New International Dictionary to the power “to pass over into the control of some one else, as by selling; to alienate; to part with; to relinquish; to get rid of;” and one to whom such power over property is given-with no reservation of title or interest to the donor must certainly have a fee simple right to whatever property or interest is thus transferred to him for disposition. According to Black’s Law Dictionary (2d Ed.) the word “dispose”' is “called a word of large extent,” and the power to dispose is equivalent “to the power to alienate or direct the ownership of property.” In a will the absolute power of disposal of property described without limitation imports a fee simple title in the person to whom such absolute power of disposal is given. Jackson v. Babcock, 12 Johns. (N. Y.) 389; Cheney v. Plumb, 79 Wis. 602 (48 N. W. 668) ; Shermer v. Shermer's Ex'rs, 1 Wash. (Va.) 266 (1 Am. Dec. 460) ; Miller v. Potterfield, 86 Va. 876 (11 S. E. 486, 19 Am. St. Rep. 919). If the power of disposal of property in which the widow is given a life estate is conferred upon her with remainder over to others in such ■ portion of the
II. After the execution of the will and codicils, the testator conveyed to his four sons the four farms which were devised to them by the terms of the will, requiring the execution by them of mortgages for the payment of $1,000 each to their mother, and he paid to each of the daughters $1,000 requiring the execution by each of a receipt stating that the amount was in full of all interest in his estate. There is testimony tending to show that his wife before joining in the conveyance to the sons protested that she would not have sufficient property left, and that she was then assured by her husband that the property remaining if distributed by her on her death to her daughters would constitute for each a substantial provision, and that the sons would get nothing more. Before the widow’s death, she executed a will distributing the bulk
The decree of trial court is affirmed.