107 Iowa 606 | Iowa | 1899
Lead Opinion
The intention of the testator is the polar star in the interpretation of a will. It will be sought from an examination of the entire instrument when taken up by its. four corners. This must be so as, of necessity, wills are prepared in all situations and by all sorts of people, — the wise and the ignorant, the unlearned in the law, as well as the-learned. Because of this, courts have deemed it of more-importance to ascertain and give effect to the washes of the-deceased than to indulge in particular refinement of reasoning or niceties of distinction, which may operate to defeat the accomplishment of the very purposes for which the instrument has been executed. There are some things, however, which even a testator may not do, and which the-courts are powerless to aid him in doing, huwever clearly-his intentions may be expressed. He cannot create a-fee with absolute power of disposal, and at the same-time clog that power of alienation by limitations over to another;'in other words, he cannot include provisions, which are absolutely inconsistent in terms and meaning, and' have all given force and effect. See Ingersoll’s Appeal, 86 Pa. St. 245. Rules for ascertaining the intention have-developed from the observations and experience of the past,, which are believed to be well adapted as guides for learning, the wishes of men generally, as expressed in such instruments. These canons of interpretation cannot be rejected,, except on great consideration. As said by Sharswood, J., in Doebler’s Appeal, 64 Pa. St. 15: “It becomes no* court to,
It appears that no rule is better settled in the law than th&t the first talcer of property under a will, with full power to dispose thereof, must be considered the absolute owner, and limitations over held void for repugnancy. Rona v. Meier, 47 Iowa, 609; Alden v. Johnson, 63 Iowa, 125; Killmer v. Wuchner, 74 Iowa, 359; Pellizzano v. Reppert, 83 Iowa, 498; Holliday v. Stickler, 78 Iowa, 388; In re Burbank’s Will, 69 Iowa, 379; Mulvane v. Rude, 146 Ind. Sup. 476 (45 N. E. Rep. 659); Bradley v. Carnes, 94 Tenn. Sup. 27 (27 S. W. Rep. 1007); Wilson v. Turner, 164 Ill. Sup. 398 (45 N. E. Rep. 820); Van Horne v. Campbell, 100 N. Y. 287 (3 N. E. Rep. 316, 771); Schouler Wills, sections 558, 559; 2 Jarman Wills (5th ed.), 529; Gifford v. Choate, 100 Mass. 346; Jones v. Bacon, 68 Me. 34; Kelley v. Meins, 135 Mass. 231; McKenzie’s Appeal, 41 Conn. 607; 2 Redfield Wills, 277; 20 Am. & Eng. Enc. Law, 955. This is because the limitation is inconsistent with the power of alienation or an absolute fee, and the testator will be presumed to have intended the gift rather than to have defeated it by the limitation over. It has never been the purpose of this court to depart from that well-recognized rule. In Iimas v. Neidt, 101 Iowa, 348, we refused to1 give more importance to the numbering of paragraphs in a will, and the order in which they appeared, than to the clearly-expressed meaning of the testator, as gathered from the entire instrument. There the fifth clause of the will bequeathed generally certain land to Katherine Klein, describing it, without defining the estate therein or conferring in terms the power of disposal. The sixth clause excluded her from possession until a sum to be paid another child was secured by her and two other children. By the eighth clause, the widow was given the use of
The distinction between the attempt to devise the estate remaining after the death of the devisee to whom the absolute fee has been given and the remainder after the exercise of the power of disposition thereof as a separate interest, where a life estate only is given, should be observed. To the gift of a life estate may be annexed the right to sell the remainder for defined purposes, as a separate gift, and a devise of the part undisposed of is held good. Mansfield v. Shelton, supra; Burleigh v. Clough, 52 N. H. 267; Ramsdell v. Ramsdell, 21 Me. 293; Healy v. Eastlake, 152 Ill. Sup. 424 (39 N. E. Rep. 260); Welsh v. Woodbury, 144 Mass. 542 (11 N. E. Rep. 762); Chase v. Ladd, 153 Mass. 126 (26 N. E. Rep. 429); Swarthout v. Rainer, 143 N. Y. App. 499 (38 N. E. Rep. 726); In re Proctors Estate, 95 Iowa, 172; Jenkins v. Compton, 123 Ind. Sup. 117 (23 N. E. Rep. 1091); Smith v. Bell, 6 Pet. 68, as construed in Roberts v. Lewis, 153 U. S. 379 (14 Sup. Ct. Rep. 945). In Collins v. Wickwire, 162 Mass. 143 (38 N. E. Rep. 365), the distinction is pointed out: “On the other hand, in this state, and generally else
II. Having settled the rules of interpretation by which we are to be guided, we now inquire concerning the character of the gift of Israel Kister to Catherine. The residue" of the property, after the gift to Jennie, ivas cast upon the wife,, and with it coupled the unrestricted power of disposition. This results from the provision that it “shall be inherited and go to my beloved wife, Catherine Kister,” and that “nothing herein contained shall be construed to prevent my said wife selling any real estate I may leave and for her use.” Having given her the property with unlimited power of alienation, nothing remained to' dispose of to' another, and the limitation over is void for repugnancy, for that the limitation, rather than the gift, will be adjudged invalid. The language of the will referring to what remains at the death of the wife must be construed as precatory only, and not as limiting the absolute devise to her. It follows that; as Mrs. Brewster acquired no interest in the property in controversy under the will, the demurrer was rightly sustained.— Affirmed.
Dissenting Opinion
(dissenting).
I am not in accord with the reasoning or conclusion of the majority opinion. The opinion does, however, state the law in plain and unmistakable terms, and I reproduce that part of the opinion, in that it may appear in close connection with what I regard as an unwarranted departure from it. The.rule is stated as follows: “The intention of the testator is the polar star in the interpretation of a will. It will be sought from an examination of the
It must be remembered that no- question arises as to a sale of the property, nor are the rights of third parties affected. The question simply is, what legal barrier is in the way of enforcing both provisions ? The provision as to the remainder is only operative if there is a remainder. If all is sold, the provision as to the remainder becomes inoperative by the terms of the will. We are not to inquire what, is meant by the property being devised to the wife “for her use while she may live.” Whether it means the same as “for her support,” or is of broader significance, it still remains that there is a limitation on the right to sell, so that the power of disposition is not absolute. She may not dispose of it for-the use of others; nor can she direct its use after her death. There is a clear limitation as to the time, and the extent of the use granted. In re Proctor's Estate, 95 Iowa, 172, Mr. Justice Kinne collected the authorities on a question so similar that I regard it as controlling, and they are cited in the majority opinion, including the Proctor Case. It cites the case of Bills v. Bills, 80 Iowa, 279, and, referring to the cases cited in the Proctor Case, it is said: “We need not
I confess to some confusion in the cases in this state on this branch of the law, but in the late cases, we have, by a reference to all the cases, deduced the rule that is to govern, as stated in the Proctor Case, and in Jordan v. Woodin; and the holding is explicit that, to make a devise or bequest-absolute, it must be without words of limitation; and where what would otherwise be a devise of a life estate is sought to be made an absolute devise,’ because of a power of disposition, such power must be absolute and unrestricted. If, in any of the cases in this state, this court has stated that provisions of a will, substantially like those in this case, are so1 inconsistent that force and effect cannot be given them, I insist that the statement is erroneous, and that there is no good reason for its repetition. I regard the provisions of the will in this case as absolutely consistent and easy of enforcement. The majority seem to think the provisions of this will as to a remainder will clog the operations as to the devise of the widow, for it is said that a testator “cannot create a fee with absolute power of disposal, and at the same time clog that power of alienation by limitations over to another;” and the rule is applied to reach the conclusion in this case. I say,— - First, that the will does not attempt to> create a fee with absolute power of disposal; and, second, that the devise as to the remainder’, which is thought to be. the limitation, did not become operative till the power of alienation ceased by the death of the widow, when it became operative only as to property that could not thus be alienated. By what reasoning can it be said that such a devise clogs the power of alienation
In view of our contentions, I earnestly urge upon the majority to point out wherein all the provisions of this will are not enforceable; and, to that end, I think that generalities of statement should be omitted, and the will be assumed as in due course of execution under the forms of law, and then, by anticipating every fact and condition that might reasonably affect the result, see if the power of alienation would be clogged, or if there is such inconsistency in the provisions of the will that it may not be enforced in a way that the intentions of the testator may prevail rather than be defeated, for all agree that, if it can be done, it should be.
I Save said that there is some confusion in our own cases on the branch of the law pertaining to the construction of wills; and I may frankly say that I have concurred in some holdings that I now think erroneous, and that tend to defeat our oft-repeated rule as to the intention of the testator being the' polar star of interpretation. In so far as we have trenched upon that rule, we should retrace: our steps, for no one contends that its violation is justified; and I may add 'that I think we have, in effect, done so by construction in our later cases, such as the Proctor, the Bills, and the Jordan-Woodin Cases, before cited. However, I find no case that I regard as authority for the holding of the majority in this case.
In the second division of the majority opinion, there seems to be a concession that the power of disposition must be
The majority opinion cites some cases from other states' showing the rules that govern in such cases, and makes the cases authority for its conclusion in this case. In some, if not all, of such cases, the application of the rule accords with' my view, and is, hence, against the conclusion of the- majority. I make special reference to Mansfield v. Shelton, 67 Conn. 390 (35 Atl. Rep. 271), the majority opinion containing the rules therein announced. The syllabus of the case, sustained by the reasoning, is as follows: “Under the provisions of a will, in terms, ‘all the rest and residue of my estate, both real and personal, and wherever situated, I give, devise, and bequeath to my said wife, to be used and appropriated by her, as much as she may wish for her happiness, without any restrictions or limitations whatsoever,’ — followed by provisions that after the death of the wife, and the payment of