56 Iowa 218 | Iowa | 1881
The provisions of the will involved in this case are as follows:
As matter of law the court found:
“ 1. That the said Catharine Eittgers is not bound to re
“ 2. That the said Catharine Rittgers is entitled to have one-third in value of all said real estate set apart to her in fee.
“ 3. That the remaining two-thirds of said real estate, and the profits therefrom, remain in the possession and control of the said Catharine Rittgers, in trust, till the said Mary attain ■the age of fifteen years.”
We think the court placed the proper construction upoil the terms of the will. It does not devise tbe profits of the real and .personal property to the widow absolutely, ■but for a particular and specified purpose. The devise is “ for the purpose of raising, clothing, and educating the children born to us.” The children are the beneficiaries. The widow is the mere trustee for the purpose of executing the trust. It is clear to us that the children referred to have a right, under the provisions of this will, to insist that all the profits arising from tbe property in question shall be applied to their raising, clothing, and education. The widow could not waive the right to have the profits so applied, and hence this provision in the will is not inconsistent with her right to have her distributive share assigned under the law. Ap-' pellants concede if the use and profits of all the real estate and personal property of the decedent, between the time of his death and the time when the youngest child, Mary, shall become fifteen years of age, are, by the terms of the will, given to the widow, in trust, and she can have no personal advantage therefrom,- that she is entitled to have one-third
It is claimed that the terms of the will are too indefinite and uncertain to create or be construed into a trust. Without elaborating this point we are of opinion that the will is not so indefinite or uncertain but that it may be enforced. The court properly held, we think, that the beneficiaries of the will are the minor children, yet. to be raised, and for whose clothing and education the parents were responsible.
Affirmed.