173 Iowa 264 | Iowa | 1915
“First, — I give and bequeath to my husband, Jonathan Duncan, such share of my estate as he is entitled to have and receive under the laws of ,n . . "<■ t the State of Iowa.
mT . , . , T this will was executed 111 1908. It IS admitted that Jonathan Duncan died in 1909, and Mary Duncan died in 1910, and her will has been duly admitted to probate. It is admitted in the answer, or by way of concession on the trial, that Jonathan Duncan, named in
By the decree, the trial court gave to the four defendants named one half of the estate, and the question is whether the defendants are entitled to anything, under the clause of the will quoted. Appellees cite authority that, where two constructions may be given to the language of a will, the one sustaining the will is to be preferred. And they contend that, because of the provisions of Code Section 3281, one half of the property of Mary Duncan passed to the children of Jonathan, who took as heirs of said Jonathan, devisee under the will. That section of the Code reads:
‘ ‘ If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest.”
Defendants cite, also, In re Hulett’s Estate, 121 Iowa
If it were not for the provisions of Section 3281 of the Code, the devise or the provision for Jonathan Duncan in his wife’s will would lapse by reason of his death, even though it had been such a provision as would unequivocally give him a share in her estate. We are of the opinion that a contrary intent is manifest in this will and that, under its provisions, the heirs of Jonathan Duncan take nothing. In order to give them anything, the court must add to the will something which is not contained therein, and make the paragraph in issue read substantially as follows:
*267 • “I give and bequeath to my husband, Jonathan Duncan, such a share in my estate as he is entitled to have and receive under the laws of the state of Iowa in case he should survive me.”
This we have no authority to do. Testatrix gives her husband “such share as he is entitled to . . . under the laws . . . ” The will speaks either at its date in 1908 or at the death of the testatrix, in 1910. The husband died in 1909. If the will speaks from that date, then appellees have nothing, as Jonathan Duncan had no fixed interest in the estate during his wife’s life. If it speaks from her death, they can have nothing, as Jonathan Duncan, by dying before the death of his wife, took no interest in her estate. We must find that he is entitled to something under the law, before his heirs can get anything under the will, because the amount given him by law is the measure of what they will get by the will. The law would give him nothing; hence the will gives them nothing. We think the meaning and intention of the testatrix was that she would not interfere and would not add to or detract from what the law would give her husband, and that she intended to limit him to just what the law would give him, and give the balance to her sisters. In view of the fact that, at her death, the law gave him nothing, her sisters would take the entire estate. Had he survived her, he would have taken title under the law, which would be the paramount title, rather than under the will, in view of the fact that the provision for him in the will is exactly the provision which the law would make for him. Under these conditions, we are of opinion that, under this provision of the will, the husband took nothing, and therefore his heirs take nothing.
The trial' court erred in holding to the contrary, and the judgment is reversed and the cause remanded for further proceedings in harmony with this opinion. — Reversed.