124 Iowa 681 | Iowa | 1904
Lead Opinion
The material portions of the will of Nancy Miller, so far as they relate to the property in controversy, are as follows:
Second. I devise and bequeath all the remainder of my estate, real and personal, wherever situate, unto my six children, named as follows : James M. Miller of Stafford County, Kansas; Mary J. Talbot of Birmingham, ■ Iowa; Nancy I. Cron'in of Bes Moines, Iowa; Henry C. Miller of Clark County, Missouri; Theodore F. Miller of Winfield, Iowa; lone M. Hathaway now temporarily in Scotland County, Missouri, share and share alike equally.
* * * -jc- -****■ -s * *
Fourth. If I should die seized of any real estate I authorize my executor or executors to sell the same at public or private sale as may be deemed best by him, and to execute
Fifth. If any of my children are dead at the time of my death, issue of such child or children shall take the same share as the parent would take if living, and if there be no issue then my surviving children and surviving issue of children shall take all the estate.
Sixth. The several devises and bequests herein made to my children are made with the following restrictions and provisions, to wit: If any of my said children shall die without leaving any issue, then all of the money or property received by such child by virtue of this will shall descend to and be divided among such of my children as shall then be living, and the surviving issue of such as may not be living, the issue of any of my children not living at the time taking the share of the parent.
Under paragraph two of this will, Nancy Cronin, before her death, received her share of the property of the testatrix, and, treating it as belonging to her in her own right, without limitation or condition, invested a portion of it in certain real estate, and held the balance as personal property; and it is this real and personal property in the hands of her administrator and her husband’s administrator and her grantees to which plaintiffs seek to assert title, claiming that, as said Nancy Cronin died without issue, said property reverted to them under the provisions of. the sixth paragraph of the will. In short, the contention of plaintiffs is that, while the second paragraph of the will, taken alone, would be an absolute and unconditional bequest to Nancy Cronin of a share in Nancy Miller’s property, without condition or limitation, this second paragraph must be construed as limited by the sixth paragraph so as to constitute a bequest to each of the legatees named, with the condition that the share bequeathed, in the event that any legatee die without issue, should pass to the other legatees or their issue.
One argument made for the appellees is that the sixth paragraph relates only to a case where a legatee named in the
The action of the lower court in sustaining the demurrer to plaintiff’s petition was therefore correct, and the judgment for defendants is affirmed.
Concurrence Opinion
I concur in the result announced in the foregoing opinion, but do not agree in the thought that the sixth paragraph of the will is void for repugnancy, or that this case comes within the rule of Meyer v. Weiler, 121 Iowa, 51.