151 Iowa 309 | Iowa | 1911
Did the widow, Babetta Schricker, become the owner of the estate of her husband, John Gr. Schricker, after his debts/ were satisfied and two legacies of $1 each had been paid, or did she acquire the use thereof during life only, with the power of alienation annexed ? This is the sole inquiry presented on this appeal, and its solution depends on the _ interpretation to be given the fourth and fifth clauses of John Gr. Schricker’s will, reading as follows:
Fourth. I give, devise and bequeath to my beloved wife, Babetta Schricker, all my estate, both real, personal and mixed, in whatsoever the same may consist or wheresoever the same may be situated at my decease, to be by her used and disposed of during her natural life precisely the same as I myself might do if I were living; and I give my said wife full power to sell, exchange, invest and reinvest the same in the same manner I might do if living, and to distribute the same by gift or otherwise among my children at any time during her life, as shall seem to her best and proper.
Fifth. If any of my said estate shall remain undisposed of by my said wife at the time of her decease, I give, devise and bequeath all such residue and remainder of my estate to be equally divided among the following children who shall be living at the death of my wife, and the issue of any child who may have then deceased, such issue taking the share to which said deceased child would be entitled if living: One-fifth thereof to William O.*311 Schricker. One-fifth thereof to Lorenzo Schricker. Oner fifth thereof to John Schricker. One-fifth thereof to Otto Schricker. One-fifth thereof to Emma Eelger.
• It was conceded that all the personalty in the hands of thn administrator of Mrs. Sehricker’s estate was derived from the estate of her husband under the fourth clause of the will, and that, aside from the persons named in the fifth clause, she left surviving her a son, George Schricker, and a grandson, William Baurose. The controversy involves the right of last-named persons to share in the estate. It will be noted that the gift is of the property of deceased, of every nature and kind, and not the use of the property merely, and what follows purports to confer upon her that full control over it an owner might exercise. True, the time she is to do this is during her natural life; but this in no manner impairs the complete title passed to her absolutely under the first sentence, for she could-not well use or dispose of, sell or exchange, invest or reinvest, at any other time. The case is readily distinguishable from Pool v. Napier, 145 Iowa, 699, on which appellant relies, for there the gift was “of the use and benefit” of the property — not, as here, of the property itself. In that case the appellants conceded that had the gift been of the property, rather than “the use and benefit” thereof, it would have been absolute. In Podaril v. Clark, 118 Iowa, 264, the testator did “convey unto my wife . . . all my right, title and interest in all of my property, both real and personal, for her natural ■ life,” and this was construed, in connection with other clauses of the will as devising a life estate only though by a divided court. In Luckey v. McCray, 125 Iowa, 691, a will in essential particulars precisely like- that under consideration was held to pass absolute title to the wife. The decision is on “all fours” with this case, and must be regarded as ruling it. No useful purpose will be served for repeating the arguments pro and con to be found in
As under the fourth clause the gift was absolute, the fifth clause was precatory only, Law v. Douglass, 107 Iowa, 606, and the court rightly directed the distribution of the estate to the heirs of Babetta Schricker. Affirmed.