128 Iowa 643 | Iowa | 1905
Ada Wheeler, of Taylor county, Iowa, died testate on December 31, 1892. By the second paragraph of her will, which has been duly probated, the testatrix in general terms devised and bequeathed her entire estate, real and personal, to her daughter and only child, Burt Grlendore. By the third and fourth paragraphs it was further provided that, if said daughter should die before arriving at the age of 18 years, the property mentioned in the will should' be equally divided between the father, brothers, and sisters of the testatrix; but, if the daughter should marry before arriving at the age of 18 years, she should becomé entitled to the “ full control of said property. By the fifth and last paragraph the defendant herein, John M. Long, brother of the testatrix, is named as sole executor without bond, and he is given authority to sell the real estate, if, in his judgment, such sale is for the best interests of the devisee. Said Long appears to have been duly qualified as executor, and to have been also appointed guardian of the child. On September 16, 1903, Belle Wheeler, claiming to appear as next friend of Burt Grlendore Wheeler, filed a motion or application in the probate proceedings to compel the executor to- make a final report of his trust and charge himself as guardian with
It may be- said that Belle Wheeler, at whose instance this proceeding was instituted, appears to be a volunteer in this matter, and, so far as the record discloses, the ward herself, who is old enough -to exercise the right of choosing her own guardian, is not dissatisfied with the situation of the estate. It was, however, within the discretion of the court to entertain the proceeding, and we shall dispose of the case upon the merits of the proposition argued by counsel.
“ It is tbe intention of tbe testator, and not tbe rule of construction which governs.” Matter of James, 146 N. Y. 100, 40 N. E. Rep. 876, 48 Am. St. Rep. 774. A fair reading of the will here in question discloses no intention to reduce the devise to the daughter to a mere life estate; nor is such the effect of conceding the validity of the third and fourth paragraphs. These added clauses do no more than provide a condition that the death of the daughter before marriage and before arriving at her majority should operate to defeat entirely the estate given to her by the second paragraph, and vest the same in the father, brother, and sisters of the testatrix. If the contingency thus provided against does not arise, and the daughter lives to reach the age of 18 years, or sooner marries, the limitation or condition will cease to operate. In other words, until the devisee arrives at the required age, or sooner marries, her estate is determinable by her death. That the clearly expressed purpose of the testator to create an estate of this kind will be respected and enforced is well established. Wilhelm v. Calder, 102 Iowa, 342, 30 Am. & Eng. Enc. Law (2d Ed.) 751; Littlewood’s Will, 96 Wis. 608, 71 N. W. Rep. 1047. It is true that the devise of a fee in land to one person, with an executory devise over to another, is not inconsistent with the right of the former to succeed to the possession and enjoyment of the property immediately upon the death of the testator; but the will before ns, when read as a whole, in light of the conceded facts and circumstances, mákes it quite clear that the testatrix did not intend that
The order appealed from is affirmed.