Law v. Douglass

Lado, J.

The intention of the testator is the polar star in the interpretation of a will. It will be sought from an examination of the entire instrument when taken up by its. four corners. This must be so as, of necessity, wills are prepared in all situations and by all sorts of people, — the wise and the ignorant, the unlearned in the law, as well as the-learned. Because of this, courts have deemed it of more-importance to ascertain and give effect to the washes of the-deceased than to indulge in particular refinement of reasoning or niceties of distinction, which may operate to defeat the accomplishment of the very purposes for which the instrument has been executed. There are some things, however, which even a testator may not do, and which the-courts are powerless to aid him in doing, huwever clearly-his intentions may be expressed. He cannot create a-fee with absolute power of disposal, and at the same-time clog that power of alienation by limitations over to another;'in other words, he cannot include provisions, which are absolutely inconsistent in terms and meaning, and' have all given force and effect. See Ingersoll’s Appeal, 86 Pa. St. 245. Rules for ascertaining the intention have-developed from the observations and experience of the past,, which are believed to be well adapted as guides for learning, the wishes of men generally, as expressed in such instruments. These canons of interpretation cannot be rejected,, except on great consideration. As said by Sharswood, J., in Doebler’s Appeal, 64 Pa. St. 15: “It becomes no* court to, *609 be wise above that wbicb is written. Security of title requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have adopted had he been truly advised of the legal effect of the words actually employed.”

It appears that no rule is better settled in the law than th&t the first talcer of property under a will, with full power to dispose thereof, must be considered the absolute owner, and limitations over held void for repugnancy. Rona v. Meier, 47 Iowa, 609; Alden v. Johnson, 63 Iowa, 125; Killmer v. Wuchner, 74 Iowa, 359; Pellizzano v. Reppert, 83 Iowa, 498; Holliday v. Stickler, 78 Iowa, 388; In re Burbank’s Will, 69 Iowa, 379; Mulvane v. Rude, 146 Ind. Sup. 476 (45 N. E. Rep. 659); Bradley v. Carnes, 94 Tenn. Sup. 27 (27 S. W. Rep. 1007); Wilson v. Turner, 164 Ill. Sup. 398 (45 N. E. Rep. 820); Van Horne v. Campbell, 100 N. Y. 287 (3 N. E. Rep. 316, 771); Schouler Wills, sections 558, 559; 2 Jarman Wills (5th ed.), 529; Gifford v. Choate, 100 Mass. 346; Jones v. Bacon, 68 Me. 34; Kelley v. Meins, 135 Mass. 231; McKenzie’s Appeal, 41 Conn. 607; 2 Redfield Wills, 277; 20 Am. & Eng. Enc. Law, 955. This is because the limitation is inconsistent with the power of alienation or an absolute fee, and the testator will be presumed to have intended the gift rather than to have defeated it by the limitation over. It has never been the purpose of this court to depart from that well-recognized rule. In Iimas v. Neidt, 101 Iowa, 348, we refused to1 give more importance to the numbering of paragraphs in a will, and the order in which they appeared, than to the clearly-expressed meaning of the testator, as gathered from the entire instrument. There the fifth clause of the will bequeathed generally certain land to Katherine Klein, describing it, without defining the estate therein or conferring in terms the power of disposal. The sixth clause excluded her from possession until a sum to be paid another child was secured by her and two other children. By the eighth clause, the widow was given the use of *610 the land until her marriage or death, and was required to keep the fences in repair, and pay the taxes; and, by tho ninth clause, if Katherine died before majority, the land was to be divided equally among the surviving children-.. We held that, as the interest or estate in the land given Katherine in the fifth clause was not therein defined, it was subject to the limitations contained in the other clauses of the will. This was because the limitations involved no inconsistency with the conditions of the gift. In other words, where the gift to the first taker is general or indefinite in terms, and the character of the estate conferred undefined, the limitations and conditions contained in the other portions of the will ought not to be construed as inconsistent or repugnant to the gift, but rather as defining its character. It is the power of alienation given in terms or by necessary inference which precludes the limitations over, and compels the court to construe the gift an absolute fee. Unless the provisions of the will are necessarily repugnant, there is no reason why the intention of the testator should not govern. The Timas Case simply followed Grindem v. Grindem, 89 Iowa, 295. Mr. Schouler, in his work on Wills, says: “As a rule, an absolute devise in terms must be construed in connection with other clauses of the will which serve to modify its effect. And a fee which is given in the first part of the will may prove to be so restrained by subsequent words as to reduce it to a life estate.” Urich's Appeal, 86 Pa. St. 386; North v. Martin, 6 Sim. 266; Norris v. Beyea, 13 N. Y. 273; Healy v. Eastlake, 152 Ill. Sup. 424 (39 N. E. Rep. 261); Chase v. Ladd, 153 Mass. 126 (26 N. E. Rep. 429); Mansfield v. Shelton, 67 Conn. 390 (35 Atl. Rep. 271); Stivers v. Gardner, 88 Iowa, 310. Indeed, we have discovered no case to the contrary. The ordinary rules of interpretation are perspicuously stated in the recent case of Mansfield v. Shelton, 67 Conn. 390 (35 Atl. Rep. 272) ; "First. If the primary gift conveys and vests in the first taker an absolute interest in personal, or an absolute fee simple in real, property, it *611 exhausts the entire estate, so that there can be no valid remainder. Second. A life estate, -expressly created, will not be converted into a fee, absolute or. qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive. Third. An express gift in fee will not be reduced to a life estate by mere implication from a subsequent gift over, but may be'by subsequent language, -clearly indicating intent, and equivalent to a positive provision. Fourth. Except as restrained by the foregoing limitations, — indeed, in some instances, apparently impinging upon them, — the question as to whether the primary gift is in fee, so as to exhaust the entire estate, is in each case to be decided upon a careful examination of the entire will, aided by legitimate extrinsic evidence, to ascertain the actual intent of the testator, which intent, when so discovered and made obvious, is controlling.”

The distinction between the attempt to devise the estate remaining after the death of the devisee to whom the absolute fee has been given and the remainder after the exercise of the power of disposition thereof as a separate interest, where a life estate only is given, should be observed. To the gift of a life estate may be annexed the right to sell the remainder for defined purposes, as a separate gift, and a devise of the part undisposed of is held good. Mansfield v. Shelton, supra; Burleigh v. Clough, 52 N. H. 267; Ramsdell v. Ramsdell, 21 Me. 293; Healy v. Eastlake, 152 Ill. Sup. 424 (39 N. E. Rep. 260); Welsh v. Woodbury, 144 Mass. 542 (11 N. E. Rep. 762); Chase v. Ladd, 153 Mass. 126 (26 N. E. Rep. 429); Swarthout v. Rainer, 143 N. Y. App. 499 (38 N. E. Rep. 726); In re Proctors Estate, 95 Iowa, 172; Jenkins v. Compton, 123 Ind. Sup. 117 (23 N. E. Rep. 1091); Smith v. Bell, 6 Pet. 68, as construed in Roberts v. Lewis, 153 U. S. 379 (14 Sup. Ct. Rep. 945). In Collins v. Wickwire, 162 Mass. 143 (38 N. E. Rep. 365), the distinction is pointed out: “On the other hand, in this state, and generally else *612 where, this principle is held not to be applicable where the will, purports only to give a life estate to- the first taker, with merely a power of disposition of the remainder as a separate interest. In such a case, if the power is executed, the property passes under the original will, through the execution of the power, to the person designated; and, if it is not ext* cuted, it remains to be affected by the other provisions of the will, or to pass as undevised estate of the testator.”

II. Having settled the rules of interpretation by which we are to be guided, we now inquire concerning the character of the gift of Israel Kister to Catherine. The residue" of the property, after the gift to Jennie, ivas cast upon the wife,, and with it coupled the unrestricted power of disposition. This results from the provision that it “shall be inherited and go to my beloved wife, Catherine Kister,” and that “nothing herein contained shall be construed to prevent my said wife selling any real estate I may leave and for her use.” Having given her the property with unlimited power of alienation, nothing remained to' dispose of to' another, and the limitation over is void for repugnancy, for that the limitation, rather than the gift, will be adjudged invalid. The language of the will referring to what remains at the death of the wife must be construed as precatory only, and not as limiting the absolute devise to her. It follows that; as Mrs. Brewster acquired no interest in the property in controversy under the will, the demurrer was rightly sustained.— Affirmed.