In re the Will of Weien

Deemer, J. Lars Weien made and executed a will, the body of which was in tbe following words: In the name of tbe Lord Amen. I, Lars Weien, of tbe township of Fairview, county of Shelby and State of Iowa, being of sound, disposing mind and memory, and of full age, do hereby make, publish and declare this my last will and testament, hereby revoking all former wills made by me. First. I direct tbat my body be decently buried in a manner suitable to my circumstances in life, as to such worldly estate as it hath pleased God to bestow upon me, and I dispose of. tbe same as follows: First. I direct tbat my executors shall pay my funeral expenses and all my just debts as speedily as possible, after my decease, out of my personal property if the same be sufficient therefor, it being my express desire that no charge be made against any real estate I may be possessed of, until my personal property be first exhausted. Second. I give, devise and bequeath to my beloved wife Mette Pethrine Weien, all my estate, both real and personal, in whatever it may consist or wherever it may be situated at my decease, to be by her used and disposed of during her natu — 659 — ral life precisely tbe same as I myself might do were I living; and giving my wife full power to sell, exchange, invest and reinvest the same, in the same manner I might do if living and to distribute the same by gift or otherwise among my children, as she shall deem best and proper, and 'to allot the same among my children by will after her decease according to her own best judgment and discretion. On the same day, and evidently as part of the same transaction, Mette Pethrine Weien, wife of said Lars Weien, made and executed a will in the same language and form, except that she is named as testatrix, and her husband as the beneficiary. Thereafter the wife died, leaving no property or estate. Later the husband died. After his death both wills were duly admitted to probate, and one George Iiaward was in each instance appointed administrator with will annexed. In due time Haward presented his final report as administrator of the estate of Lars Weien, showing a balance in his hands for distribution, after paying all claims, of $1,375.65. He also showed that the persons listed as heirs of Lars Weien and heirs of Mette Pethrine Weien were identical, but that one M. -J. Larson had appeared, claiming to be a son and heir of the husband, but not of the wife. Of the right and claim of Larson, the administrator being unable to speak with knowledge, he asked that it be determined by the court. Larson entered an appearance to the proceeding, and offered evidence in support of his claim to be an heir, and of his right to share in the distribution of the estate. After hearing the evidence the court found that said Larson was a son and heir of Lars Weien, but concluded, as a matter of law, that the effect of the will was to devise an absolute estate, in all of said testator’s property, to his wife, and although she died first, yet, by virtue of the statute (Code, Sec. 3281) the devise inured to the benefit of her heirs alone, and the — 660 — claimant, not being one of her heirs, was not entitled to share in the estate. From this decision Larson has appealed. 1. Wills: Construction. There is no donbt under the evidence that appellant is the son of Lars Weien, and as snch is entitled to a part of the property .of which he died seised, unless the same was disposed of by the will, heretofore set forth at length. The sole question in the case then is, does the will devise an estate in fee to testator’s wife, or did it simply transfer a life estate, with remainder over to testator’s heirs ? At the outset it is well to note that the will contains no residuary clause, and if appellant is entitled to anything, it is because there was a remainder undisposed of by will, in which he is entitled to share. This is important, for the reason that of two modes of construction that is to be preferred which will prevent, either partial or total intestacy. Ross v. Ayrhart, 138 Iowa, 178; Given v. Hilton, .95 U. S. 591 (24 L. Ed. 458); Higgins v. Dwen, 100 Ill. 554; Cate v. Cranor, 30 Ind. 292; Trusty v. Trusiy, (Ky.) 59 S. W. 1094; Dole v. Johnson, 3 Allen (Mass.), 364; Saxton v. Webber, 83 Wis. 619 (53 N. W. 905, 20 L. R. A. 509). 2. Same: devise in fee. The contention made for appellant is that the will devised but a life estate to testator’s widow, and that the remainder was left undisposed of, and passed to testator’s heirs. Going back now to the testament, it ^e n°ticed that it in express terms gives the wife (widow) all of the testator’s estate, both real and personal, to be used by her and disposed of during her natural life precisely as he might do if living. There is no limitation here of a life estate, as in many of the cases cited and relied upon by appellant. Counsel, however,1 seize upon the words “to be used and disposed of during her natural life,” and claim that these limit the estate to the widow for life. — 661 — But it will be noticed that these are followed by other provisions, to wit, “precisely the same as I myself might do were I living,” and by other words giving her power to give or to will the entire property according to her own judgment and desires. If the widow could use and dispose of the entire estate precisely as the husband might do if he were living, she undoubtedly held a fee, although the will also says that she could do so during her natural life. Of course she could do nothing with the property after her death; and there is no room to say that she could not give the property away or will it after her death, for these powers are also expressly given. There is no reservation whatever upon her powers of disposition. By the express terms of the will she had the same power as the testator might have had had he survived, and nothing is left to inference. This so-called power she was to exercise in her own right, and not by reason of appointment from her husband. Whatever she might do with the property she was to do as if it were her own. She had full power to use and dispose of’ it, and was not limited in any way by the terms of the will. She had the power to use, to sell, to give, and to will; and if anything be lacking, we have failed to discover it. Moreover, there was no attempt to dispose of any remainder or of anything which might be left upon the death, of the widow. It is only by the barest inference that it can be said that her title was of a life estate, and this is negatived by the other provisions of the will, giving her full power over all the property in her own right, to be disposed of according to her judgment and discretion. Manifestly, something more than a life estate, with an added power of disposition for and on behalf of the testator, was devised. What she was to do was for herself and of her own, and not for and on behalf of her husband. In none of the cases relied upon by appellant do we find any such powers as the widow — 662 — bad under this will. In most, if not all of them, there was an express grant of a life estate, with added powers of disposition, and not, as here, of the entire estate with all powers of disposition, not as a separate estate or power, but as a part of the estate granted. Whatever of confusion there may be in our previous and recent cases may be explained and reconciled with these rules in mind. This distinction is clearly pointed out in Law v. Douglass, 107 Iowa, 606, and in many other cases following it. See, also, Burbank's Will, 69 Iowa, 378; In re Barrett’s Will, 111 Iowa, 570; Hambel v. Hambel, 109 Iowa, 459. In Law v. Douglass, supra, it is said: “Having given her the property with unlimited power of disposition, nothing remained to be disposed of to another.” That this was testator’s intent appears from the fact that he did not think he had anything left; for he did not undertake to dispose of a remainder, nor did his will contain the usual residuary clause to cover anything which might be undisposed of. This is not a case where a limited estate is granted, with power of disposition added as a subsequent gift, but is of an absolute estate, with full power of use and disposition. This distinction is clearly pointed out in Van Horne v. Campbell, 100 N. Y. 287 (3 N. E. 316, 771, 53 Am. Rep. 166), and with this in mind all of our recent cases, with possibly one exception, may be harmonized. This matter is also explained in Steiff v. Seibert, 128 Iowa, 746. See, as further supporting our conclusions, Meyer v. Weiler, 121 Iowa, 51; Luckey v. McCray, 125 Iowa, 691. It is useless to attempt a review of our own cases, or to quote therefrom in support of the rules here announced; and it goes with, out saying that authorities from other States are of no importance whatever when it appears that the decision is ruled by our own previous pronouncements upon the very question at issue. The salient points in the case are, first, — 663 — tbat the estate devised is not limited to one' for life in the first taker; second, that the power of disposition is full and adequate, and covers all methods known to the law; third, that this is not an added power, but relates to the estate granted to the first taker, and the disposition is not of testator’s estate as by appointment, but of the estate granted to the wife; and, fourth, there is no residuary clause, and no attempt made to dispose of any supposed remainder. The devisee disposed of the estate by her will, as she was authorized to do, according to her own judgment and discretion, and not according to the will of the testator, save as she was given full power of disposition in her own right and of her own estate. Surely if she had the right to dispose of the property as her own, and was disposing of her own and not the estate of her husband, she held a fee; for without it she could not pass an estate as her own. If a life estate only was granted, she had no power to will it to any one; and, if she was given power to will to whom she might see fit, she certainly must have had something to will. As further supporting these views, see, Simpkins v. Bales, 123 Iowa, 62; Luckey v. McCray, 125 Iowa, 691; Baldwin v. Morford, 117 Iowa, 72; Channell v. Aldinger, 121 Iowa, 291. With the propositions hitherto cited in mind the conclusion necessarily and inevitably follows that the widow took an estate in fee under her husband’s will, and that nothing remained for her heirs. The decree is correct, and it is affirmed.