158 Iowa 371 | Iowa | 1913
The property in controversy is a certain lot in the city of Burlington. The parties'all claim under their ancestor, Mary McCash, who was the owner of said lot prior to January 27,. 1893. On that date she conveyed to her daughter Grace a life estate to such lot. On September 27, 1893, she conveyed the remainder by “trust deed” to the plaintiff herein. Such conveyance was made in express terms subject to the life estate of her daughter Grace. The duty of the trustee was specified in the first and second sections of the trust deed as follows:
First. That if at the death of my daughter Grace L. McCash, if she shall have been married and shall have child or children living, or shall have had child or children and he or they shall have died leaving issue, I direct my trustee*373 herein named to execute to the said 'party or parties a deed conveying the title to the west seventy-eight (78) feet of said lot nine hundred and twenty-four (924), original city of Burlington, Iowa, in such shares as. they would have received had the said Grace L. McCash died seised of the said property in fee simple..
Second. If said Grace L. McCash die, and there are no beneficiaries to take said property, as provided in section 1, then I direct my trustee herein named to execute this trust by conveying the title to the west seventy-eight (78) feet of said lot nine hundred and twenty-four (924), original city of Burlington, Iowa, to the grantor herein, Mary McCash, if she be living, and if she be dead, that said trustee execute a deed to the heirs of said Mary McCash in such shares as they would have received had the said Mary McCash died owning the said property in fee simple.
Mary McCash was the mother of five children. Before her death, two of these had died, each leaving, respectively, an only child. These grandchildren appear in the record as Dayton and Bartscher, and it is conceded that each is entitled to take the share of his deceased mother. Mary McCash was survived by three living children, viz., the plaintiff, Mrs. Derby, and Grace McCash, since deceased/ Some time prior to February, 1911, Mary McCash died testate. In February, 1911, Grace McCash died testate, leaving no husband nor issue. The will of Mary McCash was executed in 1900. It contained no specific reference to the real property described in the trust deed. It did contain a residuary clause disposing of all “residue” in equal parts to her three living children, Cyrenius L. McCash, Mary Belle Derby, and Grace L. McCash. Grace McCash by hér will made the defendant Mrs. Derby her sole beneficiary, and bequeathed to her all her property of every kind.
It will be noticed from the second section of the trust deed above quoted that, if Grace McCash survived her mother and died without issue, then the trustee was directed to “execute a deed to the heirs of said Mary McCash in such
This was the conclusion of the trial court, and its order is Affirmed.