187 Iowa 734 | Iowa | 1919
I. The controversy arises over a provision in the will of one Coler, wherein he desires that his administrator, as soon after death as can conveniently be done, convert all of his real estate into money, and divide the proceeds as later directed, among ten. This is followed by a clause that one Louisa Robinson, who, testator states, is his sister-in-law, shall take as one of the ten. Then follows a direction that, “should any of the above-named legatees be dead at the time of the distribution of the proceeds of my real estate, then said share shall go to his or her living heirs.”
Louisa Robinson died testate, but before distribution was made under the Coler will. Her devisees claim that the Coler will vested the share of Robinson in her immediately on the death of Coler, and that the fact that she died before distribution did not prevent her share, when distributed, from passing under her will. On the other
II. We are not required to settle whether Louisa took a vested or a contingent interest.- Her brother is not the heir of Coler, the testator, but of Louisa Eobinson, the legatee. If Louisa took a vested interest under the will of Coler, her brother is entitled to nothing, because his sister willed all she had, to the exclusion of this brother. If Louisa took nothing under the Coler will because she died too soon, then her brother and heir is entitled to nothing, because his sister left nothing to inherit. Of necessity, then, the rights of defendant Walter Eobinson depend upon
“The will gives property to Louisa Robinson. It provides for a defeasance if she die before the distribution, and that, in event of her so dying, that her share shall go to her living heirs. I am her living heir. Therefore, her share goes to me, not because her title is contingent, but because the will of Coler gives me her share.”
The sole question we have is, therefore, whether testator intended, by the use of the words “living heirs,” to devise anything to Walter Robinson. His intent controls. Fulton v. Fulton, 179 Iowa 948; In re Moran’s Will, 118 Wis. 177 (96 N. W. 367). Had the language of the will been that there was a devise to “Louisa Robinson and her heirs,” the gift would be vested, and Walter would take nothing, because his sister, the devisee, had left him out of her will. A devise to one and his'Tieirs is- an absolute devise though “heirs” is added. Steffen v. Berend, 180 Iowa 127, at 135. In Callison v. Morris, 123 Iowa 297, 301, we held a devise to the widow for life, remainder to a son, additional provision that, if the son die before distribution, leaving issue, the estate should go to such issue, or, in the absence of issue, to the heirs of such deceased son, was “practically the same as a devise to him and to his heirs.” In a devise to one and his heirs, or to one and his issue or children, these words are presumably words of limitation, and.not of purchase, and may create a fee in the devisee. 40 Cyc. 1574. The word “heirs” in a will is primarily used in its legal or technical sense, and, unless the context shows a contrary intent, must be so construed. 40 Cyc. 1459. And where qualifying expressions are relied on to give the word “heirs” a meaning other than the technical one, they must be so direct and unequivocal as to imperatively require such interpretation. 40 Cyc. 1460; note citing Beck’s Estate, 225 Pa. St. 578 (74
We get no help from the cases cited. In them, it is made manifest that heirs or survivors of the devisee shall take. In McClain v. Capper, 98 Iowa 145, the clause was that, when the youngest child to whom there was a devise arrives at full age, “I devise that my real estate be equally divided between my children, their heirs or survivors of them.” In Taylor v. Taylor, 118 Iowa 407, it was directed that, “at her decease or marriage” of the life tenant, the estate should “be equally divided between my children or their heirs, as the law directs.”
The will under consideration is not like these. It does not provide that, when one heir becomes of age, the property shall be transferred to the other children, or to the heirs or survivors of these children, nor that, when there is a death or marriage, that a remainder shall pass to the children of testator, or go to heirs of these children as the law of descent and distribution provides. Both these directions are a clear gift to survivors, if a stated event occurs. There can be no question as to intention. And so of Baker v. Hibbs, 167 Iowa 174. The will there makes clear, and is held to make clear, that a remainder is to go to persons in a - class, those living when a life estate falls in. See In re Moran’s Will, 118 Wis. 177 (96 N. W. 367); Fulton v. Fulton, 179 Iowa 948; Horner v. Haase, 177 Iowa 115. But does this control as to a provision that a named legatee shall take, and if she die before distribution, her share shall go to her “living” heirs? Can this be said, in the light of all the will and of the existing circumstances to be more than a devise to the legatee “and her heirs?” Is it not a devise tó Louisa and her heirs, rather than a devise to her heirs upon the happening of a contingency? If the will had made no mention of heirs of the legatee, and
III. What standing, then, has the appellant? Though the Coler will created an estate which appellant might have inherited, he cannot do that, because his sister disposed of her estate to his exclusion. He can take nothing as the heir of his sister. Unless, then, it may be held that, when Coler directed that an estate should go to Louisa Robinson,
There is no controversy between the parties, and there should not be, over the proposition that, in construing a will, the intent of the testator, as manifested by the terms of the will, will be given effect, and that the intent is to be determined from taking all parts of the will together, and giving each and all full consideration, and taking note, also, of the relation of testator to the parties in interest, family arrangements, and of the circumstances which surround all concerned. See Canaday v. Baysinger, 170 Iowa 414, 417; Fulton v. Fulton, 179 Iowa 948, 958; Jordan v. Woodin, 93 Iowa 453, 460; Van Rheenen v. Veenstra, 47 Iowa 685, 687.
It is not at all controlling that there was to be a sale and distribution of proceeds. It is clear that the postponement of enjoyment of the gift to Louisa Robinson and the other nine legatees was not for reasons personal to the legatees, but for the convenience of the estate. And where the postponement is for the convenience of the estate, and not for reasons personal to the. legatee or devisee, the devise vests. 40 Cyc. 1656, 1657, 1679; 30 Am. & Eng. Encyc. Law (2d Ed.) 771; Armstrong v. Barber, 239 Ill. 389 (88 N. E.
“Where property is ordered sold and the proceeds divided, the interests given in the proceeds are vested even before the sale, unless the legacy is, in terms, contingent.” 40 Cyc. 1662.
Also, see pages 1669 and 1670. So, then, the postponement to the time of distribution is no evidence of intent that anyone other than the named legatees should, take under the Coler will. Again, all doubts are resolved in favor of vesting. Woodard v. Woodard, 184 Iowa 1178; In re Estate of Freeman, 146 Iowa 38, 44; 40 Cyc. 1650, 1660, 1668; Putbrees v. James, 162 Iowa 618, 625; Ross v. Ayrhart, 138 Iowa 117, 121; Mitchell v. Vest, 157 Iowa 336, 342; Shafer v. Tereso, 133 Iowa 342, 344, 345; Archer v. Jacobs, 125 Iowa 467, 476; 40 Cyc. 1650. The presumption is strong, when the legatees are named, and there are words of gift in addition to the direction to pay over, divide, or distribute. Olsen v. Youngerman, 136 Iowa 404, 410; 40 Cyc. 1656. The court will hesitate to find an in
Testator evidently felt a sufficient friendship for his wife’s sister, Louisa Eobinson, to include her among the ten legatees who were to share equally in the value of real estate or its proceeds. It is unreasonable that he would knowingly attach, as a condition to this expression of friendship, a condition which would make the gift absolutely useless to the very person whom he evidently wished to benefit, unless she would survive the widow, and be liv-' ing at the time of distribution, and as unreasonable that he would thus qualify and nullify his bounty to one for whom he evidently had regard, in favor of unknown or undetermined persons who might eventually become her heirs. It is much more rational to give the language its natural meaning, as indicating an intent to make the gift absolute, without regard to whether the legatee would survive the life tenant. Such an interpretation would be technically accurate, and also give effect to the apparent desire of the testator to bestow a certain'bounty, not upon a certain class, but upon certain individuals whom he desired to benefit.
In Fedderson v. Matthiesen, 185 Iowa 183, there was a will with a provision that a son might sell certain property upon a price consented to by the other heirs, and could sell only at a price satisfactory to those children, and that, after the property is so sold, $1,000 is to be given to the son. The son evinced no intention to sell, and .died before selling, and the property has since been sold to pay debts, on application by the administrator of the estate of the father. We point out that if, as contended, this provision is held to be operative only upon a sale made by the son in the lifetime, on the consent of and at a price satisfactory to his brothers and sisters, then the will leaves an intestacy,
“Starting, then, with the fact that, notwithstanding the grant of the use of the lands, the father was minded to give August an additional $1,000 on some sale, and applying the doctrine that intestacy is not favored, we have little difficulty in reaching the conclusion that this son was to have $1,000 from the proceeds of any sale, provided sucb sale was an authorized one. * * * Nothing indicates that the testator based his bounty upon a preference for one authorized sale over another authorized sale.”
In Rundel v. Matter, 184 Iowa 518, parents contracted that a sum should be paid their daughter Jessie after the death of the “grantors” (both parents). Jessie outlived one, and was outlived by the other parent. It was claimed that,, therefore, her title either never accrued or lapsed. We held nothing was shown that indicated a desire that the death of the daughter should nullify the intent to give; that “nothing suggests that these parents were controlled by a desire to keep their property from anyone who, in strictness of the law, was not an heir, rather than to benefit a child that would be their child, even at a time when the strictness of the law might hold that it was not their heir.” We conclude there was no intent to make any of the heirs of Louisa Robinson a beneficiary under the Coler will.— Affirmed.