182 Iowa 245 | Iowa | 1917
At a prior term of this court, an opinion was filed affirming that decree. Sleeper v. Killion, 157 N. W. 226. Thereafter, defendant’s petition for rehearing was sustained ; and the cause has been resubmitted, with additional arguments on the part of counsel for the respective parties.
On the original appeal from the decree in defendant’s favor, the attention of counsel and of the court was directed almost entirely to the. question of the jurisdiction of the trial court in the foreclosure proceedings to enter a decree of any kind against plaintiff’s ward, because of Avant of the notice required by laAv. The extent of the ward’s right in the premises in .case the decree of foreclosure was set aside as against him.had little and quite perfunctory
The will before us makes no other disposition of the estate than to devise it to the son for life, and thereafter to his children. At that date, the son had but one living child, and the devise to his “children in equal shares” clearly indicates the intention of the testatrix to include after-born children in the benefits of the devise, and to treat all members of that class alike. The only reasonable conclusion to be drawn from the will is that the postponement of the time of division between the children was to let in the life estate created for their father; and under such circumstances, as we have already said, it is quite unanimously held that the children take a vested remainder from the date when the will became effective by the death of the testatrix. In the language of Mr. Justice Gray, in McArthur v. Scott, 113 U. S. 340:
“Words directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remaindermen, and not to the vesting of title in them. For instance, under the devise of an estate legal or equitable to the testator’s children for life, and to be divided upon or after their death among his children in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in after-born children; although the number of grandchildren who will take, and consequently the proportional share of each, cannot, of course, be ascertained until the termination of the particular estate by the death of the parents.”
Of course, neither by amendment nor otherwise could defendant be allowed to reopen the one question which was decided upon the first appeal: the invalidity of the foreclosure proceedings as against the plaintiff’s ward.
The foregoing conclusions require a reversal of the decree below, and a remand of the case to the district court for the entry of a decree in harmony with this opinion and for the determination of such further questions as may arise concerning the terms upon which plaintiff may exercise her