Wheeler v. Long

Weaver, J. 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 [645] ’ tlie unexpended remainder of the estate. This application was resisted by the executor and denied by the court, from which ruling the next friend appeals. 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. i. Wills: limitation of absolute estate: repugnancy, The single contention raised in argument by the appellant is that the testatrix having, by the second clause of her will, devised and bequeathed her estate to her daughter in terms which, if not otherwise qualified, would , .. . vest m the daughter an absolute title, the limi- ^ ° tations placed upon that provision by the third and fourth paragraphs are void for repugnancy; and that, the child having thus been vested with an absolute and unqualified title to the property, its charge and control should be surrendered to her or to her guardian. Without conceding that this is the only question which cotild be properly raised under the issues as presented to the trial court, we proceed to its consideration. Counsel insist that by giving any force and effect -to the third and fourth paragraphs the court reduces the devisee’s interests under the will to a mere life estate, thereby defeating the purpose expressed in the second paragraph. This, it is said, cannot be done. If we were to agree that the effect of the later paragraphs is ,to pass a life estate, instead of an absolute title or fee in the property, it would not necessarily present a case of repugnancy. It has been held by this and other courts with great frequency that a clause in a will, which, standing entirely alone, will pass an absolute title, may be so restrained and limited by subsequent clauses as to pass a life estate only, or to impose conditions by.which, upon certain contingencies, the estate [646] may be entirely defeated. See Meek v. Briggs, 87 Iowa, 610; Stivers v. Gardner, 88 Iowa, 307; Jordan v. Hinkle, 111 Iowa, 43; Jordan v. Woodin, 93 Iowa, 453; Iimas v. Neidt, 101 Iowa, 348; Smith v. Bell, 31 U. S. 68, 8 L. Ed. 322; Siegwald v. Siegwald, 37 Ill. 430; Shalters v. Ladd, 141 Pa. 349, 21 Atl. Rep. 596; Bowser v. Mattler, 137 Ind. 649, 35 N. E. Rep. 701, 36 N. E. Rep. 714; Anderson v. Hall’s Adm’r, 80 Ny. 91. “ 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 [647] her daughter, who was then a young child, should come into the “ full control ” of the estate until' she attained her majority by reaching the required age, or marriage. 2. Settlement review1 onES: appeaI' It is not necessary for us to hold that the.court is without authority to require the executor to make final repórt in respect to that trust, and thereafter account for the funds and property in his capacity as guardian. But there is no charge or proof that defendant has abused his trust or wasted the estate, and no good reason is shown for holding that a refusal of the peremptory order of the kind demanded is error. The oversight and direction of the settlement of estates is committed to the district courts, and their familiarity with all the details and circumstances peculiar to cases of this character, arising for their consideration, makes it unadvisable for this court to interfere therein, save upon clear and satisfactory showing that justice demands it. The trial court, after an examination of the case upon demand of the plaintiff, found no sufficient reason for an immediate closing of the executor’s account, .and upon the showing made we are not justified in overruling that conclusion. The order appealed from is affirmed.