133 Iowa 215 | Iowa | 1907
The material parts of the will under consideration are as follows:
It is my wish that my daughter Mary C. Wolcott have the use of my stock in the Sanborn Map Publishing Company in consideration of the kind care she has taken of me during my sickness, which has been long and severe. I do not wish her to part with it, but to keep the dividends for her own personal use, after she has paid Dr. Perrine all expenses connected with my own sickness and death and also my husband’s funeral expenses.
At her death I wish the principal to be equally divided among the heirs of my four children, George P., John A., and Edgar B. Clark, and Mary C. Wolcott.
This will was executed December 23, 1882, and testatrix Emiline A. Clark died February 12, 1883. The will was not probated, however, until October 15, 1897. Mary C. Wolcott and Geo. P., John A., and Edgar B. Clark were all alive when testatrix died, but since that all have died, save
The questions presented by the record are these: First. Is Mary C. Wolcott entitled to the stock dividend of the five shares of stock issued before her death? Second. Are the children of Geo. P. Clark entitled to anything, he being alive at the time of the death of Mary C. Wolcott? Third. Do the children of Mary 0. Wolcott, and of Edgar B., John A. Clark, and of George P. Clark, if they are entitled to anything, take per capita or per stirpes under the terms of the will ?
With such divergence of opinion, it is manifest that cogent reasons may be given in support of either of these propositions. We shall not attempt to review the cases cited in support of the different rules. He who cares to know the logic thereof may read. Our duty is performed when we establish a rule for this State which we believe best sustained on principle and by authority. That .rule more nearly approximates what is called the American than any
Many reasons might be given for this conclusion, but it is enough to say that the law favors the early vesting of estates; that, wills be so construed, if possible, as to render all the provisions thereof legal and valid; and that such instruments will be so construed, if possible, as to prevent even partial intestacy. Blackman v. Wadsworth, 65 Iowa, 80, is not in point, as an examination will disclose. Our conclusion on this branch of the case finds support in the following additional authorities: Dawson v. Schaefer, 52 N. J. Ch. 341 (30 Atl. 91) ; In re Scott’s Estate, 163 Pa. St. 165 (29 Atl. 877) ; Underwood v. Robbins, 117 Ind. 308 (20 N. E. 230) ; Durfee v. MacNeil, 58 Ohio, 238 (50 N. E. 721) ; Appeal of Lockwood, 55 Conn. 157 (10 Atl. 517) ; Feltman v. Butts, 8 Bush (Ky.) 115. The husbands or wives of testator’s children are neither children nor heirs, and therefore take nothing under the will. Morris v. Bolles,
Our conclusions upon the entire case are that Mary Wolcott or her heirs are not entitled to the so-called stock dividends ; that the gift of the remainder was to the children of the persons named in the will in being at the time of the death of Mary C. Wolcott; that these children took per'capita, and not per stirpes; and that the surviving husband and wives of the named children took nothing under the will. The order and decree of the district court so provides, and the appeals are without merit. The costs of the appeal will be equally divided between the children of Mary C. Wolcott, deceased, and of Edgar A. and Evaline Clark.
The decree is affirmed.