Meyer v. Weiler

121 Iowa 51 | Iowa | 1903

Lead Opinion

Deemek, J.

The material provisions of the will of Andrew Weiler are as follows:

“I will and bequeath unto my beloved wife, Elizabeth Weiler, all my personal property of whatsoever .kind, to. be taken without inventory and appraisement, as well as all-real property belonging to my estate intending to make- and hereby making her the aforesaid Elizabeth Weiler, my sole residuary heir and legatee. It being the true object- and purpose of this bequeath however, to provide for my said beloved wife, to the best of my ability during the remainder of her natural life the same is hereby conditioned to this effect that whatever part of my estate-may remain at the death of .my beloved wife personal as well as real, shall be then disposed of as ordained in section fifth of this instrument.”

‘‘Fifth. After the death'of myself and the death of my beloved wife, Elizabeth Weiler, our property, real ’ estate as well as personal property, if any such is left, shall go to our nearest relatives, namely, — one-half of the whole estate to the relatives of Andreas Weiler, namely to Rachel Weiler and Marie Weiler, of JPike Township, Muscatine County, Iowa, and the other half of the whole estate to the relatives of Elizabeth ' W eiler my beloved wife, namely: — (1) To Mrs. Margaretha Uebelhak, born Meyer, residing at Lindenhard,Post Office, Schnabelweide, Provinz Oberfránken, Kingdom of Bavaria, one-third of the whole one-half. (2) John Meyer, residing near Andalusia, Rock Island County, State of Illinois, one-third of the whole one half. (3) Margaretha Meyer, residing near Andulusia, Rock Island County, State of Illinois, one-third of the whole half.”

Plaintiffs are devisees under the will of Elizabeth Weiler, who died after the demise of Andrew; and the sole question for our consideration is the nature of.the estate devised by Andrew Weiler to Elizabeth in the second paragraph of his will. The proposition thus presented is one which has heretofore given us' considerable trouble, and in somewhat similar cases we have been unable to agree upon the conclusion. An extended review of'the cases does not seem to be called for at this time, for they are familiar to the profession, and nothing can be gained from again stating what they in fact decide. If wills were always couched in the same language, or if the' writers thereof followed stereotyped forms, there would, perhaps, be an end to these cases. But such a situation can hardly be expected in view of the nature of our forms of expression and of the varying circumstances and conditions under which wills are prepared. Nevertheless,; there aré some established canons of construction which; must be followed and preserved, else the whole matter is left in doubt and uncertainty, and no one can write his last testament with any assurance or with any hope that it'will beeonstruedasheintendeditto.be. ‘ ,

i. wills;con-pugnancy; rights of widow. Every will and contract is drawn with reference to the law as it then exists, and, as sometimes stated, it is to be construed as if the law were written into it in express terms; and it is quite as important in construing such instruments for courts to be consistent as it is that they should be technically correct. The doctrine of stare decisis is essential to the establishment of any system of law, and when men are unable to rely on previous decisions their business is sorely jeopardized, their contracts set at naught, and their wishes thwarted. With these thoughts in mind, we now turn to some of the cases which have never been questioned or doubted, to see if we can find a rule which should settle this controversy.

In Law v. Douglass, 107 Iowa, 607, we said: “There are some things, however, which even a testator cannot do, and which the courts are powerless to aid him in doing, however clear 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 provisi ms which are absolutely inconsistent in terms and meaning, and have all given force and effect.” That rule has never been departed from in any decision of this court.

Bills v. Bills, 80 Iowa, 269, announces this rule. “ When there is an absolute and unlimited devise of property, a subsequent clause expressing a wish, desire, or direction for its disposition after the death of the devisee will not defeat the devise or bequest, nor limit the estate or interest in the property to the right to possess and use the same during the life of the devisee or legatee. The absolute devise'stands, and the other clause is regarded as presenting precatory language.”

In Hambel v. Hambel, 109 Iowa, 459, the will read: “I devise and bequeath to' my wife, Lucelia A. Hambel, all my property, both real and personal, of every kind and description that I may own at my decease.” The second paragraph of the will was as follows: “I further direct that at the decease of my said wife all the property then remaining shall be equally divided between my children, except W. 0. Hambel, youngest sou, that may be living at the time of my decease.” Our holding was that the widow took an estate in fee. The will thus construed is very similar to the one in the case at bar.

In Halliday v. Stickler, 78 Iowa, 388, the will gave all the property to the husband, and then provided that whatever was left at his decease should be equally divided among his children and their heirs. Held, that he (the husband) took an estate in fee. It was said in this case: “If the first devisee has power, by the terms of the will, to dispose of the property, he must be considered the absolute owner, and any limitation is void for repugnance.” See, also Rona v. Meier, 47 Iowa, 607, and In re Barrett's Will, 111 Iowa, 570.

In Baldwin v. Morford, 117 Iowa, 72, it is said: “The general proposition is now fairly well settled that giving to the first taker a powrer to sell and dispose of the property, where the power is not limited to some particular or specified purpose, does not have the effect to enlarge a life estate into a fee. Where, however, the language is such that, when given its accepted legal meaning an absolute devise of the fee is created, a subsequent provision which seeks- to limit or restrict the effect of the devise or reduce the fee to a life tenancy is void for repugnance.”’ While there has never been any departure from these-rules, we have held that where the first taker has but a limited power of disposition, this power will not enlarge a. life estate into a fee; and have also decided that, if the first taker is given but a life estate, and to that is added unlimited power of, disposition, this added power does not in all cases create a fee in the first taker. This latter proposition was not accepted by the entire court, however. See Podaril v. Clark, 118 Iowa, 264.

Where power of disposition is added to a life estate, it then becomes important to determine whether it is annexed as a separate gift and should be treated as a power of appointment simply; or whether it is annexed to the primary estate devise'd, so that the estate conveyed pursuant to the power takes effect out of the interest of the devisee. If the former, a limited estate only is created. If the latter, an estate in fee is devised. 'This point is made plain in Law v. Douglass, supra, and Van Horne v. Campbell, 100 N. Y. 287 (3 N E. Rep. 316, 771, 53 Am. Rep. 166). The majority made the decision in Podaril v. Clark turn on two propositions: First. That a life estate in express terms was devised Mary Poderil, and, as she was given but a limited power of disposition, the life estate was not enlarged. Second. The power of disposition in that case was a separate gift, and was not an incident to the life estate granted.

There is no case which even tends to sustain appellants’ position unless it be Iimas v. Neidt, 101 Iowa, 348; but there the first taker was not given unlimited power of disposition, and the majority held that, taking the will by its “four corners, ” it was manifest that nothing but a life estate to the first taker was intended. There was a dissent in that case, to which the writer still adheres. Indeed, he thinks that the departure already made from established canons of construction has left courts and lawyers at sea,’ and that it is high time to return to the rule of stare decisis, especially in view of the fact that large property interests are generally involved in litigation of this character. We have now reached the point where we must overrule all our previous decisions, and say that there are no settled rules for the construction • of wills in this court, or else adhere to those already made and generally understood. . .

To sustain appellants’ contention it will be necessary ■to overrule not only the cases we have cited, but many more equally conclusive, and this we are not prepared to ■do. Taking the will, in question by its “four corners,” ■and looking to the language employed we find that Andreas Weiler, by the second paragraph of his will, gave ■his wife, Elizabeth, all his real and personal property, intending, as he said, to make her his sole residuary heir and legatee; but he also says that whatever part of his ■estate remains at the death of the wife shall be disposed of as provided in the fifth paragraph; The fifth paragraph then disposes of whatever may be left, if any, at the time •of the wife’s death. That this amounts to the gift of the testator’s estate with full and unlimited power of disposition is so plain that no amount of argument can make it plainer; and it is'equally clear that, if we are to follow our previous cases, we must hold that this created a fee in *the first taker, and that the subsequent devises are void for repugnance.

Appellants rely on the last sentence of the second paragraph of the will; but this, to our minds, simply emphasizes the thought which the testator evidently had in mind of giving his widow full and unlimited power of disposition of an estate in fee. The true construction of ■this clause, we think, is that the testator makes his widow his sole residuary heir and legatee for the purpose of providing for her to the best of his ability during her natural lifetime, and that, if any of the estate thus devised remains at the time of the wife’s demise, then he directs •that it shall be disposed of as provided in the fifth paragraph of the will. Not only is the wife bequeathed all his ■property, both real and personal, with the intent of making her the sole residuary legatee, but she is to-take it without -appraisement, and is given full power of disposition not ■■only by the second, but also by the fifth, paragraph of the will. The will is so similar to the wills construed in Hambel v. Hambel and Halliday v. Stickler, supra, that the-rules there announced must govern herein, or these cases-must be overruled. See, also, Stivers v. Gardner, 88 Iowa, 307.

Appellants contend that the widow had no power to will the estate granted her. This contention is without' merit. Hambel v. Hambel, supra. Pellizarro v. Reppert, 83 Iowa, 498.

2. agreement of devisee. II. The fourth paragraph of Andreas Weiler’s will reads: “Fourth. In the event that my beloved wife-shall depart this life before me, then in this case it is her express will and testament that I, Andreas. Weiler, shall be her sole and only heir of all that is left after her death of personal property as well as-real estate. ” Appellants contend that by. accepting the-provisions of this last will and testament Elizabeth Weiler consented and agreed to all its provisions, and that by a fair construction of the terms thereof she agreed not to-change the provisions of the second and fifth paragraphs giving one half of the'property left by either or both to> the husband’s relatives and one half to the relatives of the-wife. This argument, though specious, is unsound. The-fourth paragraph is conditioned on the death of the wife before the death of the husband — a contingency, which did not happen. It is not a joint will, for Elizabeth did not. sign it. Until the death of Andreas, Elizabeth had no interest in his estate, and she did not agree to will the property received from him to any particular person or persons. As we have found that the widow took a fee under the second and fifth clauses of her husband’s wil.1,. the other provisions thereof inconsistent with such an estate are void for repugnancy, and there is no room for the doctrine of election. Elizabeth Weiler was not: required to devise wha't was left of the estate received, from her husband to the persons mentioned in the fifth-clause of his will. Bills v. Bills, supra.

The trial court was right in its construction of the will and its judgment is aeeikmed.

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Concurrence Opinion

McClain, J.

(concurring). — My agreement with the

result reached by the majority is founded on the view that the language of the will expresses an intent to give absolutely the property described to the widow, and also an inconsistent intent by way of condition that the property remaining undisposed of at the widow’s death shall pass to other beneficiaries. Where there is such a conflict,. I think it well settle! in reason and on authority that the principal provision prevails, and the condition is void. If the language following the provision apparently giving the widow the absolute title indicates an intent to qualify the estate given to her, then it should be given effect. But it indicates, on the contrary, a wholly inconsistent intent. In other words, either the principal provision or the condition must fail, and in such a case certainly the. condition must be disregarded. The clause intervening between the words of absolute gift and the words expressing a condition do, indeed, purport to state the object and purpose of the testator; but its meaning is ambiguous. It is as consistent with the intent already expressed in the preceding clause as with the intent expressed in the condition, and it does not, therefore, support the condition as against the principal clause. If I have correctly interpreted these three clauses — the principal clause, the explaining clause, and the condition — then the conclusion of the majority would seem-to be incontestable. I am unwilling, however, to indorse the assumption embodied in the majority opinion that we have lately departed from,, and are now returning to, the landmarks of earlier cases, or to countenance the assumption in the dissent that the earlier cases are wrong, and are no longer to be taken as precedents. In this case there is no language indicating an intent to give the wife an estate for. life, and in addition a power to dispose of the absolute title; and the views expressed by this court in reference to provisions of that character are not applicable to the case before us. Perhaps we could remake the will so as to better effect the ultimate purpose of the testator, but in arriving at the testator’s intent we must limit ourselves to the interpretation of the language used. I agree that the judgment of the lo'wer court should be affirmed.

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Dissenting Opinion

Weaveb, J.

(dissenting). — Clearness and certainty in the — law especially as it relates to matters of general and vital interest — are greatly to be desired, and in no case is this result more important that in controversies arising over the distribution of property by will. If, therefore, in the present case, a surrender of my personal views would promote that desirable end, 1 should feel in duty bound to yield my own opinion to that of the majority. Being fully convinced, however, that the conclusions of the court as expressed by Justices Deemer and McClain are wholly without sufficient support in principle or precedent, and tend to create confusion and uncertainty concerning the' fundamental ’ rules of testamentary construction, I am compelled to dissent.

I. Referring first to the solicitude expressed by the majority for the maintenance of “established canons,” I must be permitted to affirm that there- is known to the law but one invariable rule of construction applying alike to all wills under all circumstances, and that rule may be stated in a half dozen words, ‘ ‘ The intent of the testator governs.” The only qualification of this principle is that the intent expressed by the will must be lawful, and its execution possible. Other rules are often cited, chief among which are: First, that in ascertaining the intention of the testator regard must be had to the entire will, and not to any one-part or clause; and, second, that, the intention being ascertained, effect must be given to .every part and clause of the will, and nothing therein be rejected or ignored, save only in those rare instances where provisions are found so utterly inconsistent or repugnant that it is impossible to reconcile them on the basis of any reasonable interpretation of the instrument. These latter propositions serve merely to support and emphasize the fundamental rule first stated, and prevent its nullification by any forced or partial rendering of the testator’s' language. The authorities sustaining this general view of the law are practically innumerable, and too familiar to justify citation. It is an equally familiar principle that, where the intention of the testator is clearly expressed, courts will not resort to any technical rules of construction; for no construction is required where the meaning is clear, and an attempt to apply such rules to language which is neither ambiguous nor doubtful tends to defeat, rather than aid, the testamentary intent. And right here, in my view, is the vice of the process by which the decision of this case has been'reached. The intent expressed in the will before us is clear, definite, and certain; but by forcing upon it a narrow and technical rule of construction-,, which never had general recognition by the courts, and is now rarely appealed to anywhere, we make for the testator a will which violates his expressed purpose, and diverts his estate into a channel he never contemplated. Indeed,, both of the majority opinions concede, in effect, that the testator’s intent is frustrated by this judgment, but justify a departure from the general rule on the ground that the-will gives the wife an estate in fee, and that the provision for a remainder over to the appellants is inconsistent,-and is therefore void. If t'he premises thus laid are sound, I cheerfully concede the necessity of the conclusion; for,, assuming the gift of an absolute fee to one person, there-cannot also be a gift of an estate in remainder in the same-property to another person. This is a mere axiomatic-proposition — as if we should say that no man can make a„ square circle, or give all his property to A and a part of it to B. Baxter v. Bowyer, 19 Ohio St. 490. The real inquiry lies farther back: Does the will create a fee in the wife?

II. To reach the affirmative of that proposition, we# must be able to say from the language of the will that the testator clearly intended to invest his wife with full and absolute ownership of his entire estate. This we cannot do. We are bound to assume that he was a man of sound mind and of average intelligence. • As such he knew that he could not accomplish the impossible feat, to which I have already adverted, of giving all his property to his wife and part of it to the appellants. The very fact that he provides for a remainder over after the wife’s death is strong evidence that he did not understand he had already disposed of the fee. That fact alone has often been held to be sufficient to qualify and restrain the effect of prior words, which, standing alone, would be sufficient to carry (the entire estate. Jones’ Ex’rs v. Stites, 19 N. J. Eq. 324; Smith v. Bell, 31 U. S. 68 (8 L. Ed. 322); Cousino v. Cousino, 86 Mich. 323 (48 N. W. Rep. 1084); Zimmerman v. Anders, (Pa.) 6 Watts & S. 218, 40 Am. Dec. 552. The language of the will of Andreas Weiler is in this réspect both clear and convincing. Beading it unobscured by the fog of technical learning, it is impossible to doubt its in-lent. While the instrument was apparently drawn by one who had no clear comprehension of the precise legal definition of some of the words employed, yet taking it as a whole its statement of the testator’s purpose is simple and direct. His intent to give the wife a life estate is not left ’to be drawn as a mere inlerence from the gift of a remainder over. The second paragraph not only contains the gift to the wife, but in the same connection explains his purpose to afford her a, life support, and provide for ithe gift of the remainder over to others. Apparently to avoid any possible misunderstanding in this respect, he •expressly makes this paragraph subject to the provisions •of the fifth paragraph, in which he repeats his direction in mandatory language, and states the names of the de-visees and their respective shares in remainder. His wife is designated no more clearly or specifically than the other beneficiaries. It was both right and just that he shou'd insure the comfort and support of his widow for the rest ■of her life, even if it should exhaust the entire estate; but there was no legal necessity of vesting her with the fee for that purpose. It was equally just and right that he shquld give to the family relatives the remainder which might be unexpended at her death. This, as any lawyer would have advised him, he had the legal right to do; a right upon which it has remained for this court in the present case to cast the first shadow of doubt.

The underlying thought of the majority opinions, as 1 analyze them, is simply this: That whereas the testator, in making the provision for his wife, uses the words, “I will-and bequeath all my property,” etc., and whereas such words would of themselves ordinarily be sufficient to pass a fee, it was not competent for him by subsequent words to modify, limit, or restrict the gift to a life estate. In other words, it asserts, in effect, that from the use of the quoted words an intention to devise a fee will be conclusively presumed, without regard to subsequent provisions, even though, as men of ordinary understanding, tve may be morally certain that no such purpose was in the testator’s mind. I am not disposed to deny that exceptional cases may be found giving color to this most unreasonable doctrine, but, to the credit of the l.iw be it said that the courts which now recognize its authority are rare indeed. It is true, of course, that a will must be construed to mean just what its language imports, and, if it clearly provides for a fee, we must give it effect accordingly; but before we can say that any given phrase or clause does create -such an estate it must be examined with reference to the context and the entire body of the will, and if therefrom it appears that the intent and purpose of the testator was to create merely a life estate or a trust, then such intent will be enforced, even though the'first words of gift standing alone would have carried a fee. Walker v. Pritchard, 121 Ill. 221 (12 N. E. Rep. 336); Morrison v. Schorr, 197 Ill. 554 (64 N. E. Rep. 545); Shalters v. Ladd, 141 Pa. St. 349 (21 Atl. Rep. 596); Hamlin v. U. S. Exp. Co., 107 Ill. 443; Bowser v. Mattler, 137 Ind. 649 (35 N. E. Rep. 701, 36 N. E. Rep. 714); McCloskey v. Gleason, 56 Vt. 264 (48 Am. Rep. 770). This rule is entirely ignored by the majority. It reads the will just far enough to include the language which, standing alone, would give the wife a fee, and there stops, refusing to accord any weight or influence to the language which follows. By this simple and convenient method of eliminating all qualifying clauses, every mortgage may be converted into an absolute conveyance, every penal bond into an incontrovertible evidence of debt, and the injunction, “Let him that stole, steal no more,” into a divine commendation of larceny. The books are full of cases in opposition to the holding announced by the majority.

In Siegwald v. Siegwald, 37 Ill. 430, the will contained the following provision: “I give and bequeath to my beloved wife all my real and personal estate, wheresoever situated, in fee simple absolute, forever; that is to say, that my wife shall have all the benefits thereof until the expiration of her life, at which time my son* Anton, shall be the only heir of real or personal estate, what may be left.” The court held that the wife took a life estate only, saying: “The first clause, unaffected by the words of limitation, unquestionably vested a fee simple absolute, and plaintiff in error insists they are repugnant to the devise, and are, therefore, inoperative. * * * The will must be so construed as to effectuate the intention of the testator, and that intention must be ascertained from the language employed in the instrument itself; and in arriving at the intention all the language employed must be considered. It seems evident that tbe testator did not intend to devise the widow a fee simple absolute, otherwise he would not have added the limiting clause. Had that been his intention, he had fully accomplished the purpose without employing the latter clause; ,but when he did so it must have been to limit or qualify the estate already devised.”

In Smith v. Bell, 31 U. S. 68 (8 L. Ed. 322,) the same question arose upon a will which gave an estate to the wife “to and for her own use, benefit, and disposal absolutely,” but further gave the remainder to a son after the wife’s decease. Chief Justice Marshall there says, “The latter words give the remainder to the son with as much clearness as the preceding words give the whole estate to the wife,” and proceeds to reconcile the apparent repugnance by construing the devise to the wife as a life estate. He argues: “If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out. Yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. We areno more at liberty to disregard the last member than the first. * * * The limitation in remainder shows that in the opinion of the testator the previous words had only given an estate for life. This was the sense in which he used them.” In the Zimmerman Case, above cited, the Pennsylvania court discuss a similar will, saying: “If the testator had stopped at the devise to his wife of all the residue and remainder of his estate, no doubt she would have had the fee; * * * but when he proceeds to dispose of it after her decease by giving over to another what is left after paying her funeral expenses, his intention to give her a life estate only is manifest, and the limitation over is not rexmgnant to the previous devise, but explanatory of it.”

A striking illustration of the same principle is found in a Recent Wisconsin case: Littlewood's Will, 96 Wis. 608 (71 N. W. Rep. 1047). The testator, in the body of the will, gave his entire estate to his wife “for her sole benefit,” and appointed her executor of the will and guardian of the child without bond. The attestation clause of the instrument was in the' following form: “In witness whereof I have set my hand and seal the 6th day of April, 1891, but if one or the other dies the one that survives the other takes it all. ” It was held that the devise to the widow was subject to the provision last mentioned. The court says: “It is true that the language of the first paragraph would give the widow an estate in fee, but it seems very clear that the final clause controls, and was meant to control, the language of the previous gift. * * * Its language is not technical, but its purpose is plain.” To the same purpose it has been decided that a later clause of a will, when inconsistent with a preceding provision, “is to, be considered as intended to modify or abrogate the former.” Hamlin v. U. S. Exp. Co., 107 Ill. 443; Friedman v. Steiner, 107 Ill. 125. A testator “may restrain the generality of a devise by subsequent expressions, and may convert that which would otherwise be a fee simple into an inferior interest. ” Shalters v. Ladd, supra. Directly in point also are Friedman v. Steiner, 107 Ill. 125; Harbison v. James, 90 Mo. 411 (2 S. W. Rep. 292); Anderson v. Hall, 80 Ky. 91; Richardson v. Paige, 54 Vt. 373; Ln re Oertie, 34 Minn. 173 (24 N. W. Rep. 924, 57 Am. Rep. 48); Haldeman v. Haldeman, 40 Fa. 34; McMurry v. Stanley, 69 Tex. 227 (6 S. W. Rep. 412); Baxter v. Bowyer, 19 Ohio St. 490; Sweet v. Chase, 2 N. Y. 78; Taggart v. Murray, 53 N. Y. 233; Tyson v. Blake, 22 N. Y. 560; Trustees v. Kellogg, 16 N Y. 83; Alexander v. Cunningham, 27 N. C. 430; Wager v. Wager, 96 N. Y. 164; Terry v. Wiggins, 47 N. Y. 512; Kent v. Morrison, 153 Mass. 137 (26 N E. Rep. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616); Mansfield v. Shelton, 67 Conn. 390 (35 Atl. Rep. 271, 52 Am. St. Rep. 285); Urich's s Appeal, 86 Pa. 386 (27 Am. Rep. 707). In every one of these cases the devise was sufficient to create a fee if considered independent of the subsequent limiting provisions, but in each one the limitation was given effect, modifying the devise; and every decision is a clear denial of the rule upon which the present case is made to turn.

III. Nor is the suggestion any better founded ' that the will before us gives tbe wife an unlimited power .of disposition of the property, and therefore a fee. As before noted, the grant of this power is claimed by the majority to be implied from the fact that the gift to appellants is restricted to that part of the estate which may be left at the death of the wife. But such implication does not necessarily arise. It has been frequently held that, where an estate for life in both real and personal property is devised, and the remainder over is limited ,to "what is left” by the life tenant, there is^ no implied power to sell the real property, and the reference to "what is left” applies only to the personalty. Siegwald v. Siegwald, supra, Such, indeed, is the express holding of this court. Greve v. Camery, 69 Iowa, 220. Unless, therefose, we abandon the rule thus affirmed by üs, there is no power of sale iu this will to strengthen the presumption of a fee in the wife. But, even if the power were expressly given, the conclusion sought to be based thereon is untenable. Such power, when given in aid -of a life ■estate, is in no proper sense unlimited. For example, in the present will the "true object” of tbe devise to the wife is declared to be to provide for her "during the remainder of her natural'life,” and it follows'of necessity that the possible diminution of the estate which the testator contemplated has relation only to such expenditure as might be found necessary or reasonable to insure her support and comfort. The power, if any be given, is “unrestricted” only in the sense thakthe testator relieves her from the annoyance of supervision by the court or by a trustee, and leaves it to her to determine for herself when her convenience or comfort requires a sale of any of the property, and the unexpended proceeds óf su’ch salea remain in her hands.subject to the terms of the will. The power of sale to a life tenant is executorial in character — ■ a power to change the property into money for the benefit of the estate, or for its better enjoyment (Baxter v. Bowyer, supra) — and has no effect to enlarge the estate into a fee. Such, also, as we shall presently see, is the doctrine to which this court is already committed. The point of this proposition is not to be parried by reference to the rule that, while the power of sale added to an express gift of a life estate will not expand such estate into a fee, yet, if such power is added to words of general gift (not importing a life estate), it will be presumed that a gift in fee was intended. That principle, which is usually quoted with the indorsement given it by Chancellor Kent in • an early New York case, is of undoubted soundness within the limits of its proper application. It was an outgrowth of the common law rule then in force that mere general words of gift, as “I devise to A. B.,” were not sufficient to create a fee in the devisee, but were construed as-passing a.life estate only. Hawkins on Wills, 130. To pass afee, it was required that technical words of inheritance be employed, or, in their absence, some other words or expression indicating an intent to devise the entire estate. The power of sale, under such circumstances, was held to indicate that intent. This common law rule of interpreting testamentary gifts has long since been modified or abandoned in most states by statute, and in others by. gradual development in judicial opinion, and the doctrine which now prevails'is that every devise carries the entire estate of the testator, unless a contrary intent is to be reasonably inferred from the terms in which the gift is made. In other words, we come back to the first and fundamental question, what did the testator intend? If the devise is otherwise in doubtful terms, a general'power of sale in the first taker may well be held sufficient to indicate an intention to devise a fee; but where, from all the language employed, it is apparent that the intention was to give the first taker a life estate only, then such power will not enlarge the gift into a fee. The rule relied upon by the majority must, like all other rules of construction, yield to the clear purpose of the testator as indicated by a survey of the entire instrument. Still v. Spear, 45 Pa. 168; Jourolmon v. Massengill, 86 Tenn. 81 (5. S. W. Rep. 719); Brasher v. Marsh, 15 Ohio St. 108; Schouler on Wills, 464-470; Stuart v. Walker, 72 Me. 146 (89 Am. Rep. 311); Patrick v. Morehead, 85 N. C. 62 (39 Am. Rep. 684). “It is the intention of the testator, and notthe rule of construction, which governs.” Matter of James, 146 N Y. 100 101, (40 N. E. Rep. 876, 48 Am. St. Rep. 774); Tebbs v. Duval, 17 Grat. 361.

In a large proportion of all the many cases heretofore cited the first words of gift are general, and are followed by grants of power to sell and dispose of the corpus of the estate in whole or in part, yet in none of them is it held that such power was sufficient to defeat the intent of the testator to restrict the holder of such power to a life estate-in the property. That the maker of the will before us did intend to limit the devise to his wife to a life estate is too evident for argument, and there is, therefore, no repugnancy whatever in the several provisions contained in the instrument, and there is, as I have shown, no rule of law which requires us to defeat his intention. On the contrary, it is our duty as a court to actively seek for any reasonable interpretation of bis language which will give effect to every clause of the will, and to reject none. Under a just application of this principle it has been said by a leading law writer that it is “very uncommon with us to hear a court declare a will or' any of it 'ju'ovisions wholly inoperative by reason of repugnancy or uncertainty.” Kedfield on Wills, page 453.

IV. The disposition made of this case is further sought to be justified on the ground that we are bound to such a course by former decisions of this court. Here, also, I am compelled to take issue with the majority. We have repeatedly adhered to the rule that the intént of the testator, when discernible from the will, must prevail, and that in ascertaining such intent reference must be had to all parts and provisions of the instrument; and this rule, faithfully observed, would render impossible the decision we here announce. Johnson v. Mayne, 4 Iowa, 192; Hopkins v. Grimes, 14 Iowa, 73; Heidlebaugh v. Wagner, 72 Iowa, 603. Moreover, we have held in numerous cases that a gift or devise made in one paragraph or clause of a will may be modified or limited by a subsequent paragraph or clause. In Meek v. Briggs, 87 Iowa, 610, a devise which was absolute in form was held to be subject to a trust created by a later paragraph, because, as we said, “construing the clauses of the will together, there can be no doubt as to the testator’s intention.” In Stiver v. Gardner, 88 Iowa, 307, we have a will in all essential particulars parallel with the one at bar; the devise being from the wife 'to the husband in general terms, sufficient, if considered alone, to pass the fee, but by a later clause provision was made by which the property should go to others upon the death or remarriage of the devisee. In holding that the later provision should operate as a .limitation upon the former, we said: “It is a fundamental rule of construction that all of the provisions of a ' will must be construed in order to arrive at tlie intention oi the testator. If the hrst clause of the will, which gives and devises the land to Thomas K. Scotthorn, is to be considered alone, there can be no doubt that it would be an absolute devise. But there is the provision immediately following that at the death of Scotthorn all of said lands should go to the testator’s son, and the further provision that, if Scotthorn should marry, all of said property should ‘revert’ to the son and daughter. These provisions are not mere recommendatory or precatory words praying or requesting that the property should go to the children upon the death or marriage of the husband. They are as absolute provisions of the will as the provisions making the devise to the husband. And they are not repugnant, because they really all relate to the same subject.” The same doctrine is repeated and emphasized in the late case of Jordan v. Hinkle, 111 Iowa, 43, where an apparently absolute devise in one parargaph is modified by the terms of another. To this same purpose, see Jordan v. Woodin, 93 Iowa, 453; Grindem v. Grindem, 89 Iowa, 295; Iimas v. Neidt, 101 Iowa, 348; Synder v. Miller, 67 Iowa, 261.

In Law v. Douglass, 107 Iowa, 606, we quoted with approval the saying of Mr. Schouler that ‘‘a fee which is given in the first part of a will may be so restrained by subsequent words as to reduce it to a life estate.” We are thus firmly committed to the principal doctrine for-which I contend, and the first serious doubt to be cast upon it is in the decision of the present case. The cases of Williams v. Allison, 33 Iowa, 278; Alden v. Johnson, 63 Iowa, 125; Hambel v. Hambel, 109 Iowa, 459; Halliday v. Stickler, 78 Iowa, 388, and Bills v. Bills, 80 Iowa, 269, are not in conflict with the precedents before cited, for in each case there was a gift of the property in clear and absolute terms to the wife, and nothing to indicate that any limitation of the gift was intended except as it could be implied by the attempt in a final clause to dispose of such part of the property as should be left at the wife’s death. It may be conceded that such a clause, unaided by other words or expressions of the testators purpose, is not in itself sufficient to limit the effect of prior words of absolute gift; and such is the full extent of the holding in the cases named. The case at bar is not of that class. In Rona v. Meier, 47 Iowa, 609, the language construed was plainly that of a mere recommendation or request, and therefore did not detract frqm or modify the gift to the wife.

V. There is, however, a marked want of harmony between some of our earlier and later cases upon the effect to be accorded to a gift by will where such gift is accompanied by power of disposal. As already remarked in this respect, unless wre are prepared to abandon our decision in Grem v. Camery, 69 Iowa, 220, the will before us confers no power to sell the land, and we might well leave this element out of the discussion. It seems to be assumed, however, by the writers of the majority opinions, that such authority is to be found somewhere in the will, and that it is of decisive weight in determining the nature of the gift to the wife. If we concede that the power to sell is given, we have next to determine which, if either, line of precedents is controlling. Singularly enough, while the writer of the principal opinion concedes the conflict in the decisions, and argues for a return to old standards, the writer of the concurring opinion is equally certain that we have never departed from “the landmarks of earlier cases.” It will be hard to demonstrate the correctness of this last assumption by reference to our Reports. It can scarcely be denied that on several occasions the court did declare, in substance, that a power given to the first taker to sell and dispose of the subject of the gift in whole or in part is inconsistent with a life estate, and that the devise was, therefore, to be construed as a fee. Benkert v. Jacoby, 36 Iowa, 273; Rona v. Meier, 47 Iowa, 607; Will of Burbank, 69 Iowa, 378; Halliday v. Stickler, 78 Iowa, 388. That doctrine has since been distinctly abandoned in several opinions, most of which bear the unanimous approval of the court constituted substantially as at present., Estate of Proctor, 95 Iowa, 172; Spaan v. Anderson, 115 Iowa, 121; Podoril v. Clark, 118 Iowa, 264; Baldwin v. Morford, 117 Iowa, 72. That this departure was not a matter of inadvertence, but the result of a strong conviction that the rule of the earlier cases was not only wrong in principle, but unsupported by commanding authority, will readily be seen by a study of these opinions. As being the later and better considered declarations of our views, and as tending to bring us into harmony with the law as it prevails, in substantially every state of the Union, we should acknowledge their authority, and unhesitatingly apply the rules thus approved. Why, then, abandon the position thus deliberately taken? Here, it would seem, is a very proper occasion to apply the rule of stare decisis, which the majority opinion commends to our consideration; and if, as there said, consistency is so much to be desired that we should maintain it even though technically wrong, 1 trust I may be pardoned the 'suggestion that the court is here missing an excellent opportunity to be both consistent and right.- The adoption of the majority opinion is a reactionary movement, taking us back into bondage to an inequitable and oppressive rule, from which we had been happily delivered — a rule which has rarely been applied save to thwart the manifest intention of the testator — and introduces an additional element of uncertainty into the law of wills in this state. So long as it exists, the time worn saying that “the intention of the testator is the pole star by which courts are guided in the interpretation of a devise” should be relegated to the list of legal fictions.

This dissent has extended to perhaps an unpardonable length. The importance of the case, and my conviction that the decision is wrong in principle, and makes the court an instrument of injustice, constitute my only apology. I am not ready to consent to such a result, and believe that the judgment of the district court should be REVERSED.