184 Iowa 336 | Iowa | 1918
This action is brought in equity, to secure the construction of the provisions in a will:
“1st. After the payment of all my just debts and funeral expenses, I give, devise and bequeath unto my wife, Deborah. A. Southwick, all my property, both real and personal of which I may die seized, * * * to have and to hold and use as her needs may require, so long as she may live.
“2d. After the death of my wife * * * T direct and will that after providing and erecting a. suitable monument on my lot * * * that the residue of said estate shall.be equally*337 divided, share and share alike, among my children” (naming them).
This will was executed on the 5th day of December, 1907. The maker of the will, Wesley Southwick, died on the 1st day of January, 1910. The will was not probated until the 29th day of January, 1916. After the will was probated, the plaintiff, the widow, elected and consented to take under the will. Some controversy has arisen between the widow, on the one side, and the children and their representatives, on the other, as to the proper construction to be given to the will. It is the claim of the plaintiff, widow, that, under the will, she takes a life estate, with, the power of sale added; that she has the absolute right, if she so elects, to séll and dispose of all the property coming to her under the will, whether her needs require it or not. This is the only question in controversy in this case.
Many wills similar to the one under consideration have been before this court, and the same claim with respect to them urged as is urged here. Since the death of the testator, in 1910, until the commencement of this action, in 1916, the plaintiff has been in the possession and enjoyment and use of all the property covered by the will. There is no contention that, in the use of the property, she has not found ample means for her support and maintenance. All her needs have been supplied during this interval, so far as this record shows, out of the use of the property during that time. In the bringing of this action, however, she contends that, by the will, there is invested, in her, not only the right to use the property during her natural life, as her needs may require, but also that there is invested in her an absolute right to alienate the property, to sell and dispose of it as she wills, and to use the proceeds as she may elect; that the rest and residue referred to iii the second clause of the will is only that which shall be left for division after she has exercised this claimed right.
In Haviland v. Haviland, 130 Iowa 611, the court had before it the following provision: “I give, devise and bequeath to my wife * * * all my property * * * for her exclusive use and benefit during her life, and after her death and funeral expenses are paid what remains to be equally divided between my children.” Held that, under this provision, she took a life estate, without power of sale added.
In In Re Estate of Condon, 167 Iowa 215, the will provided: “I give to my wife, Mary J. Condon, all of my property * * * for her own use and benefit during her natural life, and at her death, I direct what is, then remaining of the estate shall be equally divided between my children.” Held that she took mlerely a life estate, without the power of sale added.
In Benham v. Turkle, 173 Iowa 598, we undertook to distinguish the holding in the Webb case from the holding in the Hamland case.
Where words in a will indicate an intention to limit the estate granted to the life of the devisee, and they fairly import that purpose, we must assume that to be the intent of the testator. Why use. these words of limitation when the larger estate is intended? If the intention of the testator is to create in his wife an absolute estate by the devise, apt words to evidence that purpose are not wanting. It has been held, however, that, even though there he words
We think the Webb case, supra, went to the limit in finding implied power to sell, even under the wording of that will, and we are not disposed to extend it. We reach the conclusion that the court erred in holding that the widow liad an absolute power of sale under the' provisions of this will, and the cause is, therefore, — Reversed.