189 Iowa 868 | Iowa | 1920
Assuming, for the purpose of present discussion, that it makes a material difference whether or not the application is wha,t appellee claims it to be, we have the question whether the claim made is tenable. We are of opinion that, while the relief sought is permission to sell and invest proceeds, such relief is asserted to be due because of the interpretation of the will on part of the applicant, and that, to save all question on whether applicant can give good title, and may reinvest, the court is asked to say whether the interpretation of the will on part of applicant is a. correct one. Indeed, the court was compelled to construe the will, and, as will presently appear, did so.
II. The will gives to the wife (and not to the executrix) the net inqome of decedent’s farm, after deducting for improvements made and taxes paid. It gives to her the use and income from his town property, and she is to have both incomes-during her natural life, or so long as she remains single (and she has so remained).. This income is in lieu of dower, and at her death, all the realty shall be divided equally between the two sons.
Were this all, it may be granted the court did not err in refusing permission to sell. With the title to vest in the two sons absolutely, as soon as the mother died, it could well be held that authority to sell any of the real property should be denied for any of many reasons, especially where application was made by one who had ceased to be executrix at the time she applied. But that is not all of the will. The testator put therein the following proviso :
“(7) If for any reason my wife as executrix thought best to sell the town property, she shall have the right to do so and to use the proceeds from the sale 'for any necessary purpose or to invest in any other property.”
The parties agree, of course, that the intention of the testator, as it may be gathered from the circumstances surrounding the testator, when he made the will, and the words of the testament, fairly construed together, control. Applying these canons of construction, what was the intention of the testator? Can it be said he intended that the property might be sold only if his wife thought, “as executrix” (while still executrix), that it. was best to sell it? Appellee tells us that it Avas the intention thus to limit the power to sell, because testator may well have thought, when he made the Avill, that,, if it became necessary to raise money whereAvith to meet debts and expenses, such necessity would develop while the Avife was still executrix; and that, if it never became necessary to sell while she Avas still executrix, there would be no occasion to sell after that status ended. But what Avarrant is there for this claim made for the mental processes of the testator? Why should he, possessed of but a small estate, and giving power to sell, or to sell and re-invest for any necessary purpose, if she thought best, have intended by this provision that there should be no sale after she had ceased to be executor ? What proves he believed that there could be no necessity, after she ivas discharged as executrix, Avhich Avould make it best to sell the specified part of the realty? He made it plain he did not Avant the farm sold, and that, if there Avas a necessity to
We conclude it was not the intent of testator to limit the right of his wife to dispose of the town property during. the term or time that she would be acting as executrix, or in the time limit fixed for the settlement of estates.
III. The troublesome question, if any there be, is whether the court might not have declined to act because the will gave power to sell without action by the court; whether testator did not intend that the wife should be the sole judge as to whether the town property should be sold, and as to the manner in which the proceeds should be used; whether, as appellee puts it, this is not a case where, if the will gives power to sell, appellant “need not petition the court;” whether she did not have power, without court action, to sell “for any reason.”
On the theory of this opinion, a remand becomes necessary. ' The cause is remanded to the district court, with direction that it hear such evidence as may be adduced for and against the application, and then determine the same on the merits, and upon such evidence. — Reversed and remanded.