187 Iowa 289 | Iowa | 1919
Defendant Nellie S. Rose is the surviving spouse of Washington J.' Tilton, who died testate, October 29, 1914. The plaintiffs and remaining defendants are his children, and legatees under the will. After providing for the payment of his funeral expenses, debts, etc., his will gives his widow the household goods, furniture, wearing apparel, and other similar property used in and about the home, absolutely, together with one third of the residue and remainder of his estate, real, personal, and tnixed. The controversy in this case grows out of the following provisions of the will: .
“Item Fifth. I give, devise and bequeath unto each of the following named children, Jay M. Tilton, Sylvia M. T. Freeman, Goldie J. T. Mapes, Boyd J. Tilton, Clarence M. Tilton, Jessie R. Tilton, Mark S. Tilton, Ray A. Tilton and
“Item Sixth. It is my will, and intention and I direct that my wife, Nellie S. Tilton, shall be appointed the guardian of all of my minor children, and that as compensation she shall be entitled to the use and benefit and income of said minor children’s share until they shall reach their majority. In the case of any future children or child, he or they shall inherit in equal proportions to my present children, and their share shall be proportionally less. •
“Item Seventh. I give unto my wife, Nellie S. Tilton, the free use of my home farm, it being the South Half (S %) of the Southeast Quarter (S. E. %) of Section Number Twenty-nine (29), Township Number Ninety-three (93) North of Range Number Thirty-nine (39) West of the 5th P. M. until all of my children shall have attained their majority.”
The contention of counsel for appellant is that the last provision is repugnant to the clause giving to each of the minor children the fee to two twenty-sevenths of all the real estate of which testator died seized, not devised to the mother. Separated from the remaining provisions of the will, the language of the fifth clause would clearly indicate an intention to pass a two-twenty-sevenths interest in the estate absolutely; and if the seventh clause is irreconcilable therewith, the latter must fail. The order in which the several clauses appear in a will is not controlling, as the instrument must be considered and construed as a whole. Nothing, in the seventh clause is inconsistent with, or prevents, the vesting of the fee to the shares designated, in each of the beneficiaries named in the fifth clause. The manifest effect of the instrument is to vest the fee in the children, and an estate for years in the home farm in the surviving widow. The latter estate will terminate upon the attainment of majority by the youngest child of testator. The possession of the children only is deferred. As thus construed, each and every part of the will may be carried out according to the clear intention of the testator. The following, quoted from Canaday v. Baysinger, supra, is quite in point:
“The bequest to his wife created no particular estate in the wife by its terms. There is no provision that she
In this case, the clause devising to each of the children a two-twenty-sevenths interest in the portion of his real estate remaining after giving one third to his widow did not designate the particualr estate devised; and when the will is construed as a whole, it is quite apparent that the testator intended that the gift of the fee to the children was to be subject to an estate for years in their mother. The decree of the court below is right, and is, therefore,— Affirmed.