Meyer v. Weiler

Deemek, J. The material provisions of the will of Andrew Weiler are as follows: “I will and bequeath unto my beloved wife, Elizabeth Weiler, all my personal property of whatsoever .kind, to. be taken without inventory and appraisement, as well as all-real property belonging to my estate intending to make- and hereby making her the aforesaid Elizabeth Weiler, my sole residuary heir and legatee. It being the true object- and purpose of this bequeath however, to provide for my said beloved wife, to the best of my ability during the remainder of her natural life the same is hereby conditioned to this effect that whatever part of my estate-may remain at the death of .my beloved wife personal as well as real, shall be then disposed of as ordained in section fifth of this instrument.” ‘‘Fifth. After the death'of myself and the death of my beloved wife, Elizabeth Weiler, our property, real ’ — 53 — estate as well as personal property, if any such is left, shall go to our nearest relatives, namely, — one-half of the whole estate to the relatives of Andreas Weiler, namely to Rachel Weiler and Marie Weiler, of JPike Township, Muscatine County, Iowa, and the other half of the whole estate to the relatives of Elizabeth ' W eiler my beloved wife, namely: — (1) To Mrs. Margaretha Uebelhak, born Meyer, residing at Lindenhard,Post Office, Schnabelweide, Provinz Oberfránken, Kingdom of Bavaria, one-third of the whole one-half. (2) John Meyer, residing near Andalusia, Rock Island County, State of Illinois, one-third of the whole one half. (3) Margaretha Meyer, residing near Andulusia, Rock Island County, State of Illinois, one-third of the whole half.” Plaintiffs are devisees under the will of Elizabeth Weiler, who died after the demise of Andrew; and the sole question for our consideration is the nature of.the estate devised by Andrew Weiler to Elizabeth in the second paragraph of his will. The proposition thus presented is one which has heretofore given us' considerable trouble, and in somewhat similar cases we have been unable to agree upon the conclusion. An extended review of'the cases does not seem to be called for at this time, for they are familiar to the profession, and nothing can be gained from again stating what they in fact decide. If wills were always couched in the same language, or if the' writers thereof followed stereotyped forms, there would, perhaps, be an end to these cases. But such a situation can hardly be expected in view of the nature of our forms of expression and of the varying circumstances and conditions under which wills are prepared. Nevertheless,; there aré some established canons of construction which; must be followed and preserved, else the whole matter is left in doubt and uncertainty, and no one can write his last testament with any assurance or with any hope that it'will beeonstruedasheintendeditto.be. ‘ , — 54 — i. wills;con-pugnancy; rights of widow. Every will and contract is drawn with reference to the law as it then exists, and, as sometimes stated, it is to be construed as if the law were written into it in express terms; and it is quite as important in construing such instruments for courts to be consistent as it is that they should be technically correct. The doctrine of stare decisis is essential to the establishment of any system of law, and when men are unable to rely on previous decisions their business is sorely jeopardized, their contracts set at naught, and their wishes thwarted. With these thoughts in mind, we now turn to some of the cases which have never been questioned or doubted, to see if we can find a rule which should settle this controversy. In Law v. Douglass, 107 Iowa, 607, we said: “There are some things, however, which even a testator cannot do, and which the courts are powerless to aid him in doing, however clear 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 provisi ms which are absolutely inconsistent in terms and meaning, and have all given force and effect.” That rule has never been departed from in any decision of this court. Bills v. Bills, 80 Iowa, 269, announces this rule. “ When there is an absolute and unlimited devise of property, a subsequent clause expressing a wish, desire, or direction for its disposition after the death of the devisee will not defeat the devise or bequest, nor limit the estate or interest in the property to the right to possess and use the same during the life of the devisee or legatee. The absolute devise'stands, and the other clause is regarded as presenting precatory language.” In Hambel v. Hambel, 109 Iowa, 459, the will read: “I devise and bequeath to' my wife, Lucelia A. Hambel, all my property, both real and personal, of every kind and — 55 — description that I may own at my decease.” The second paragraph of the will was as follows: “I further direct that at the decease of my said wife all the property then remaining shall be equally divided between my children, except W. 0. Hambel, youngest sou, that may be living at the time of my decease.” Our holding was that the widow took an estate in fee. The will thus construed is very similar to the one in the case at bar. In Halliday v. Stickler, 78 Iowa, 388, the will gave all the property to the husband, and then provided that whatever was left at his decease should be equally divided among his children and their heirs. Held, that he (the husband) took an estate in fee. It was said in this case: “If the first devisee has power, by the terms of the will, to dispose of the property, he must be considered the absolute owner, and any limitation is void for repugnance.” See, also Rona v. Meier, 47 Iowa, 607, and In re Barrett's Will, 111 Iowa, 570. In Baldwin v. Morford, 117 Iowa, 72, it is said: “The general proposition is now fairly well settled that giving to the first taker a powrer to sell and dispose of the property, where the power is not limited to some particular or specified purpose, does not have the effect to enlarge a life estate into a fee. Where, however, the language is such that, when given its accepted legal meaning an absolute devise of the fee is created, a subsequent provision which seeks- to limit or restrict the effect of the devise or reduce the fee to a life tenancy is void for repugnance.”’ While there has never been any departure from these-rules, we have held that where the first taker has but a limited power of disposition, this power will not enlarge a. life estate into a fee; and have also decided that, if the first taker is given but a life estate, and to that is added unlimited power of, disposition, this added power does not in all cases create a fee in the first taker. This latter — 56 — proposition was not accepted by the entire court, however. See Podaril v. Clark, 118 Iowa, 264. Where power of disposition is added to a life estate, it then becomes important to determine whether it is annexed as a separate gift and should be treated as a power of appointment simply; or whether it is annexed to the primary estate devise'd, so that the estate conveyed pursuant to the power takes effect out of the interest of the devisee. If the former, a limited estate only is created. If the latter, an estate in fee is devised. 'This point is made plain in Law v. Douglass, supra, and Van Horne v. Campbell, 100 N. Y. 287 (3 N E. Rep. 316, 771, 53 Am. Rep. 166). The majority made the decision in Podaril v. Clark turn on two propositions: First. That a life estate in express terms was devised Mary Poderil, and, as she was given but a limited power of disposition, the life estate was not enlarged. Second. The power of disposition in that case was a separate gift, and was not an incident to the life estate granted. There is no case which even tends to sustain appellants’ position unless it be Iimas v. Neidt, 101 Iowa, 348; but there the first taker was not given unlimited power of disposition, and the majority held that, taking the will by its “four corners, ” it was manifest that nothing but a life estate to the first taker was intended. There was a dissent in that case, to which the writer still adheres. Indeed, he thinks that the departure already made from established canons of construction has left courts and lawyers at sea,’ and that it is high time to return to the rule of stare decisis, especially in view of the fact that large property interests are generally involved in litigation of this character. We have now reached the point where we must overrule all our previous decisions, and say that there are no settled rules for the construction • of wills in this court, or else adhere to those already made and generally understood. . . — 57 — To sustain appellants’ contention it will be necessary ■to overrule not only the cases we have cited, but many more equally conclusive, and this we are not prepared to ■do. Taking the will, in question by its “four corners,” ■and looking to the language employed we find that Andreas Weiler, by the second paragraph of his will, gave ■his wife, Elizabeth, all his real and personal property, intending, as he said, to make her his sole residuary heir and legatee; but he also says that whatever part of his ■estate remains at the death of the wife shall be disposed of as provided in the fifth paragraph; The fifth paragraph then disposes of whatever may be left, if any, at the time •of the wife’s death. That this amounts to the gift of the testator’s estate with full and unlimited power of disposition is so plain that no amount of argument can make it plainer; and it is'equally clear that, if we are to follow our previous cases, we must hold that this created a fee in *the first taker, and that the subsequent devises are void for repugnance. Appellants rely on the last sentence of the second paragraph of the will; but this, to our minds, simply emphasizes the thought which the testator evidently had in mind of giving his widow full and unlimited power of disposition of an estate in fee. The true construction of ■this clause, we think, is that the testator makes his widow his sole residuary heir and legatee for the purpose of providing for her to the best of his ability during her natural lifetime, and that, if any of the estate thus devised remains at the time of the wife’s demise, then he directs •that it shall be disposed of as provided in the fifth paragraph of the will. Not only is the wife bequeathed all his ■property, both real and personal, with the intent of making her the sole residuary legatee, but she is to-take it without -appraisement, and is given full power of disposition not ■■only by the second, but also by the fifth, paragraph of the will. The will is so similar to the wills construed in Ham — 58 — bel v. Hambel and Halliday v. Stickler, supra, that the-rules there announced must govern herein, or these cases-must be overruled. See, also, Stivers v. Gardner, 88 Iowa, 307. Appellants contend that the widow had no power to will the estate granted her. This contention is without' merit. Hambel v. Hambel, supra. Pellizarro v. Reppert, 83 Iowa, 498. 2. agreement of devisee. II. The fourth paragraph of Andreas Weiler’s will reads: “Fourth. In the event that my beloved wife-shall depart this life before me, then in this case it is her express will and testament that I, Andreas. Weiler, shall be her sole and only heir of all that is left after her death of personal property as well as-real estate. ” Appellants contend that by. accepting the-provisions of this last will and testament Elizabeth Weiler consented and agreed to all its provisions, and that by a fair construction of the terms thereof she agreed not to-change the provisions of the second and fifth paragraphs giving one half of the'property left by either or both to> the husband’s relatives and one half to the relatives of the-wife. This argument, though specious, is unsound. The-fourth paragraph is conditioned on the death of the wife before the death of the husband — a contingency, which did not happen. It is not a joint will, for Elizabeth did not. sign it. Until the death of Andreas, Elizabeth had no interest in his estate, and she did not agree to will the property received from him to any particular person or persons. As we have found that the widow took a fee under the second and fifth clauses of her husband’s wil.1,. the other provisions thereof inconsistent with such an estate are void for repugnancy, and there is no room for the doctrine of election. Elizabeth Weiler was not: required to devise wha't was left of the estate received, from her husband to the persons mentioned in the fifth-clause of his will. Bills v. Bills, supra. — 59 — The trial court was right in its construction of the will and its judgment is aeeikmed.