67 Iowa 369 | Iowa | 1885
“Second. I give and bequeath to my said executors, in trust for my beloved daughters Lizzie Collins and Katie Oollins, to each an undivided half of the following premises: The east half of- lots three (3) and four (4) in block three (3) of West Des Moines, and a fractional part of lot number three (3) in block number twenty (20) of H. M. Hoxie’s addition, now incorporated in and forming a part of the city of Des Moines; also the south sixteen (16) feet of lot number one (1) and all of lot number two (2) in block one of P. M. Scott’s addition, now incorporated in and forming a part of the city of Des Moines. * * *
“ My said executors shall have the management and control of said property by me devised to them in trust for my said children, and they are to have the control and management thereof until they shall get married; and when any of my said children shall marry with the consent of said executors any worthy person, then the part or portion of property herein devised, or the proceeds thereof, as shall be provided for hereafter, shall be and become tlie property of said child so marrying, and my said executors shall make the necessary conveyance thereof so as to vest absolute title in said legatee. Should my said executors in their judgment deem it for the best interest of their wards to sell any of the wild land or the city property, they shall exercise that discretion applicable to their own affairs, and sell same, and the proceeds thereof they shall safely and profitably reinvest.
The impdrtant question in the case is whether by this will a present estate in the property devised for their benefit is conferred upon the children of the testator. It is contended by counsel for the executor that the clause of the will, which provides that when any of said children shall marry with the consent of the executors the portion of the estate which is devised to the exeeutors for the benefit of said child shall become his property, and be conveyed by the executors to him, creates a condition precedent to the vesting in him of any estate in the property so devised. It is conceded that, if this is the effect of the provision, the bequest for the benefit of Lizzie Collins must fail, and that the property covered by it falls into the general estate,'to be disposed of as though no will had been made; for her death has rendered it impossible that the condition upon which the bequest depends should ever happen. If the intention of the testator was to be determined alone from the language of this clause of the will, the court would probably be compelled to give it the effect contended for by counsel, but it is a cardinal rule in the construction of wills that the purpose and intention of the testator is to be gathered from all of the provisions of the instrument. And we are of the opinion that, when the will in question is considered as a whole, it cannot be determined from its provisions that it was Myles Collins’ intention to make the marriage of his children with consent of the executors a condition precedent to the vesting in them of an estate in the property devised to the executors for their use. The language of the various provisions of the instrument clearly evidences, we think, an intention by the
II. The holding that the provision of the will with reference to the marriage, of the legatees is a condition for the termination of the trust created by the will, and not a condition precedent to the vesting of the estate in the legatees, disposes of the claim of Myles II. Collins that said provision is void as against public policy, for the ground of that claim is that the marriage of the legatee with consent of the executors is a condition of the bequest.
Affirmed.