Shaw v. Shaw, 115 Iowa 193

Shaw v. Shaw

115 Iowa 193 | Iowa | 1901

Given, C. J.

The will provides as follows: “First. All my just debts and funeral expenses shall be first fully paid. Second. I give, devise, and bequeath all the rest, residue, and remainder of my estate, both real and personal, to my beloved wife, Celestia Jane Shaw, to have and to hold to her, my said wife, so long as she remain my widow; then two-thirds of what is left to go to my heirs, to be equally *194divided. Third. Except five dollars to go to each of my heirs, also enough to make the rest equal to the two oldest; this is to be paid as they become of age.” Plaintiff prays “that the said will be construed and that it be construed that by the. terms of said will the fee simple title of all of the real estate and personal property left by Wm. ShaAV is hers.” The lower court “finds and construes the will to mean that the widow, Celestia- ShaAV, does not take fee simple title in the lands or personal property of the estate of the late William Shaw, but only taires the estate subject to her marriage, and with limitations of her marriage, and construes the will further to mean that, in the event the said Celestia Shaw marries, she then taires one-third of said estate or homestead, as she may elect.” The court construed the will so that this clause in the will provides that, in the event she marries, then at her death her heirs shall receive as further provided in said Avill; construing this clause to mean limitations upon her title, and giving her a life estate and her homestead rights and doAver interest. A number of commentaries and cases from other states are cited, but we regard the question as settled by our own decisions, and therefore do not refer to them. It is the intention of the testator that Ave are to ascertain and give effect to. Appellant cites In re Burbank’s Will, 69 Iowa, 378, in which the will gave to the widow “the entire control and use of my property of every nature during her life, after paying any debts I may owe, to bo by her controlled, used, and disposed of as she may think best, as fully as I could do the same were I living.” It was held that the Avill conferred absolute ownership upon the widoAV, and tha^t subsequent bequests made in the same instrument were void because repugnant to the absolute gift. This will conferred absolute power to dispose of the property, and carried with it absolute ownership, but in this case no such poAver is conferred. It is simply to have and to hold so long as she remains his widow. In Bills v. Bills, *19580 Iowa, 270, also cited, tlie first paragraph of the will bequeaths to the wife “all of my real and personal property ¡situated in Jones county, Iowa, except as hereinafter specified.” Thereafter certain lands and personal property are bequeathed and devised, and the next clause .provides that all the real and personal property bequeathed to the wife, “remaining at her decease I devise to. be divided in five equal shares,” — a share to each of the five persons named. This request to the widow was absolute and without limitation or qualification, and it was held that it must stand, and the fifth clause be regarded as presenting precatory language. In this case the bequest and devise is that she is to have and to hold, not with power of disposition, nor absolutely and without limitation, but “so long as she remains my widow.” In Law v. Douglass, 107 Iowa, 606, the power to sell was given to the wife, and it was held that the limitations were repugnant to the gift to the wife; but, as already -said, no power of disposition is given to plaintiff, but simply power “to have and to hold to her, my said wife, so long .as she remains my widow.” In Stivers v. Gardner, 88 Iowa, 807, certain real estate was bequeathed in general to the husband, followed with the provision that on the death of the husband the land should go- to the testator’s son, burdened with a payment to be made by the son. It also gave all the personal property to the son and daughter, with provision that the husband should have it during his life, “to control, manage, and use as his own.” The will concluded as follows: “But, if my said husband should get married after my death, in that event all of my said property, both real and personal, to revert to my said son and daughter.” We held that the husband’s interest terminated with his marriage.

We think the conclusions of the district court were correct, and the judgment is° therefore aketrmed.