31 Iowa 533 | Iowa | 1871
— The question here presented for our determination involves the construction of and the force and effect to be given to the conditions contained in the will. It was specially found by the jury that defendant, Elisha J. Walling, took possession of the lands under the will. This fact is not controverted, and no question is made of
There, are two distinct and separate conditions embodied in the instrument; the first imposing upon defendant the obligation to furnish to plaintiff a home and outfit; the second, that he accept the provisions of the'will in eighteen months. The language under which plaintiff claims a devise over to her in case of non-performance of the condition is so intimately and entirely coupled with the words of the last condition, that it would be a great violence to the rules of our language to mate it extend to the first condition. The second condition, with the devise over,
We come now to consider the first condition. Under the rule just stated, the forfeiture of this condition, if there were a devise ovef dependent thereon, would divest defendant of the title. But as we havé sée'n there is no devise ovef coupled with this condition, we must then •inquire whethef the non-performaüce of thé condition produces the Same effect, namely, divests defendants of the title coriferfed by the will.
When there is no limitation over, in a devise upon a condition, raising an estate in. another upon its breach, the condition of proviso is not always construed as a limitation whereby the first estate devised may be defeated. Green-leaf s Cruise, tit. 16, ch. 2, § 34. As the intention of the testator must be followed, the estate devised upon condition will be defeated or upheld after the condition broken, as such intention may be discovered in the language and coristfuctión Of the will. It appears quite plain tó us, that the testator in the will befofe us did not intend that the éstate devised to the defendant should terminate upon his failure to perform the condition first expressed. The language of the instfument fails to convey any such intention. That such interition existed we cannot presume, for the law does not favor forfeitures, and will riot, by implication or construction, create them. That the intention
The condition under consideration being for the benefit of plaintiff, without any expressed intention that its breach shall work a forfeiture of the estate, Should be regarded as creating a trust or charge upon the land in her favor, to be enforced as other trusts and charges, and not as a limitation upon the estate devised. This is the doctrine announced in many cases arising under similar conditions. An extended review of these cases is not called for;' a simple citation of those which have come under our observation is deemed sufficient. Fox v. Phelps, 17 Wend. 393; Woods v. Woods, 1 Busbee (N. C.), 290; Taft v. Morse, 4 Metc. 523 ; Hanna's Appeal, 31 Penn. St. 53 ; Luckett v. White, 10 Grill, and Johns. 480; Sands v. Champlin, 1 Story,
It is our opinion that the first condition expressed in the will does not operate as a limitation upon the estate therein devised to defendant and his heirs ; and, therefore, that a breach or non-performance of such condition does not operate to divest the title held under the will. Other questions presented in argument by counsel need not be considered, as the foregoing ruling is decisive of the case.
Affirmed.