Benham v. Turkle
| Decision Date | 25 September 1915 |
| Docket Number | No. 29907.,29907. |
| Citation | 173 Iowa 598,153 N.W. 1017 |
| Parties | BENHAM ET AL. v. TURKLE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Muscatine County; A. P. Barker, Judge.
Action to construe a will and for an accounting. Reversed and remanded.Milton Remley, of Iowa City, and H. C. Madden, of Muscatine, for appellants.
Wm. Hoersch, of Davenport, and J. F. Devitt, of Muscatine, for appellee.
Nathaniel Tobin died in 1895, testate, leaving surviving him his widow, Eliza C. Tobin, and two grandchildren, Eva O'Mealey and Erle B. Turkle, children of his deceased daughter, Belle C. Turkle. Nathaniel left a will in which he appointed his wife, Eliza C. Tobin, administratrix. The will was duly admitted to probate, and Eliza qualified as executrix. The will, so far as is material to this controversy, provides:
“Item 1. I direct that my just debts and funeral expenses be first paid out of my estate.
Item 2. To my wife, Eliza C. Tobin, I devise and bequeath lot 6 in block 7, in the town of Atalissa, in Muscatine county, Iowa, absolutely and in fee simple as her own property to do with as she sees fit.
Item 3. To my said wife, Eliza C. Tobin, I give, devise and bequeath, during her lifetime, the use, income and control of all other property, whether real, personal or mixed, of which I may die possessed, which shall be in lieu of all her statutory rights in and to my estate.”
Item 4 provides:
“It is my will, that at the death of my wife, Eliza C. Tobin, the following real estate situated in Muscatine county, shall go in fee simple to my grandson, Erle B. Turkle: [Here follows a description of certain real estate]--as soon as he shall become twenty-three years of age, but he is to have the use and income of said land from time to time after my said wife's death.”
Item 5 provides:
“It is my will that at the death of my said wife, Eliza, the following real estate situated in Muscatine county shall go in fee simple to my granddaughter, Eva B. Turkle: [Here follows a description of certain real estate]--as soon as she shall become twenty-three years of age, but she is to have the income and use of said land from the time of my wife's death.”
Item 6 is as follows:
“All other property of my estate that shall remain at the death of my said wife, Eliza C. Tobin whether it be real, personal or mixed, I devise and bequeath to the above named Erle B. Turkle and Eva B. Turkle share and share alike, but they are to have only the income thereof from the time of my wife's death until they are respectively twenty-three years of age.”
Item 6 provides that all taxes on his estate shall be promptly paid, and provides that this shall be carefully attended to by whoever has charge of the estate, whether it be his wife, during her lifetime, or the guardian or trustees of the above-named children until they shall come into possession themselves. Item 8 appoints the wife executrix. Item 9 appoints Herbert Booth guardian of his two grandchildren until they become of age, and trustee of their estate until they come into possession thereof at the age of 23.
A determination of this controversy involves a construction of this will, and, before proceeding to a consideration of the claims urged by the parties, we find it necessary to ascertain from this will what the intent of Nathaniel was in the disposition of his property as made in the will. This primarily involves a determination of what rights in or to the property the wife, Eliza, took at the time of his death. Eliza died on the 26th day of June, 1899, leaving surviving her the plaintiff Eva O'Mealey (née Turkle), and the defendant Erle B. Turkle, the parties named in the will as the grandchildren of Nathaniel.
The contention of the plaintiff is that Eliza took, under the will, only a life estate in the property therein mentioned, except that mentioned in the second item, with a right only to the use, income, and control during her life, and that upon her death it passed as provided in the will to the grandchildren. The contention of the defendant is: That, as to the property named in the fourth and fifth clauses, to wit, the real estate, she obtained a life estate, with a right to the use, income, and control of the same during her life; that upon her death it passed to the parties therein named, in fee simple, that as to all other property she took an absolute right to the property, with power of alienation; that the grandchildren by the terms of the will were given only so much of that other property as remained at the time of her death. Or that, if she took a life estate only in the other property, there was coupled with the life estate a power of disposition; that she took a life estate in all property mentioned in the third clause of the will, with power of disposition added; and that the other parties named in the will, to wit, the grandchildren, took only such property as was left undisposed of at the time of her death. These are the controversies between the parties touching the proper construction of the will.
[1] In construing a will, it is the duty of the court to ascertain and determine the intention of the testator as disclosed by the instrument. All rules of construction and interpretation are intended to aid the court in ascertaining the intent. It is the duty of the court to give effect to the whole instrument, so far as the wording will permit. The first duty of the court is to consult the document itself, and, if it is clear and unambiguous in its terms, the controversy must be determined therefrom. As it is said in some cases, it is the duty of the court to take the instrument by its four corners, consider all that the instrument contains, and from the whole instrument determine the intention of the testator as to each matter covered by its terms. No part of the instrument should be read by itself, especially where it is apparent from the instrument that the testator has undertaken to make a disposition of all his property to take effect upon his death.
[2] The rules that have been adopted for the construction of wills are useful, and only useful, when they aid in the ascertainment of the intent of the testator. The testator owns the property, and has the right to make such disposition of it as he pleases, not inconsistent with the law and public policy, and to this end he may make all legal restrictions and limitations upon the passing of the title from himself to those he names as beneficiaries. In the old days, when men skilled and learned in the law were consulted and employed in the preparation of wills, and when they were prepared by skilled hands, there was much more reason for giving to the words used their technical meaning than in these later days, when these instruments are often prepared by the testator himself, or by those chosen by him, unskilled and unlearned in the use of technical terms. As has been frequently said, words are intended to convey ideas--to convey the thought in one mind to the mind of another. The wish, the desire, the purpose of the testator must be gathered from the instrument and attending facts and circumstances, giving to the words their usual and ordinary signification, unless, by the instrument itself, they appear to have been used in a more limited or technical sense.
In construing this will, we must put ourselves as nearly as possible in the position of the testator at the time the will was drawn. At that time he was 77 years of age. His wife was approximately his own age, maybe a few years younger, a woman of simple tastes and habits. His grandchildren were the offspring of his only daughter, who died soon after the birth of Eva. The father of these children seems to have been a ne'er-dowell. Upon the death of the mother, these children were cared for by the grandparents and an aunt. The will was drawn at a time when life was drawing to its close. A desire to make provision for his wife during her remaining years, and for these grandchildren, for whom, it seems, he had a great fondness, was the dominating thought. After making provision for the payment of his debts, his first thought seems to have been of his wife. To her, in the second clause of the will, he made an absolute devise of a home, lot 6 in block 7 in the town of Atalissa. This he gave to her absolutely and in fee simple as her own property, to do with as she saw fit. In the third clause, immediately following, his wife seemed still to be in his thought. The words used in this third item, however, are significant, when brought in contrast with the provisions in the second item.
It will be noted that, in making provision for her in the second item, he used words strong and vigorous in their meaning, “absolutely and in fee simple as her own property to do with as she sees fit,” while in the third item, when he came to make further provision for her, he used words less comprehensive, and said:
“I give, devise, and bequeath the use, income, and control of all other property during her lifetime.”
This third clause of the will evidently was intended by Nathaniel to cover all property not disposed of in the second clause....
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