Bradford v. Martin

• Decision Date: 20 January 1925
• Docket Number: No. 36016.,36016.
• Citation: 199 Iowa 250,201 N.W. 574
• Parties: BRADFORD v. MARTIN.
• Court: Iowa Supreme Court

199 Iowa 250

201 N.W. 574

BRADFORD

v.MARTIN.

No. 36016.

Supreme Court of Iowa.

Jan. 20, 1925.

Appeal from District Court, Grundy County; Geo. W. Wood, Judge.

An action for partition of an 80-acre tract of land in Grundy county. From an adverse ruling on plaintiff's demurrer to her answer, defendant appeals. Reversed.Willoughby, Strack & Sieverding, of Grundy Center, for appellant.

Mears & Lovejoy, of Waterloo, and Rogers & Ruppelt, of Grundy Center, for appellee.

ALBERT, J.

Thomas Bradford was originally the owner of this tract of land in controversy. On his death his will was probated on the 4th day of June, 1901. His wife, Mary Ann Bradford, died on the 13th of December, 1922.

The material part of this will, after providing for the payment of his debts, is as follows:

“I give all my property, both personal and real estate, of which I may die possessed, of whatsoever the same may consist, and wheresoever situated, to my wife, Mary Ann Bradford absolutely, and I appoint her executrix of this my will, and I direct that she be exempt from giving any surety or sureties on her official bond as executrix.”

“3. It is my wish that at the death of my wife, Mary Ann Bradford, that after all her just debts have been paid, what is then left shall be divided as follows: $500 to be divided between my grandchildren Wilmer Martin and Warren Martin, each to share an equal amount, i. e., $250.00 to each of them. After this amount has been paid, it is my wish that all that remains be divided equally between my children, Ellis Bradford and Olive Bell Martin, each to share alike.”

The plaintiff's claim is that, under the terms of this will, the surviving spouse, Mary Ann Bradford, took but a life estate in the property in controversy. The defendant, in one division of her answer, pleads that Mary Ann Bradford took a fee-simple title. In the second division she pleads that Mary Ann Bradford's title was in fee simple, sets out a copy of the will of Mary Ann Bradford in which she bequeaths to Wilmer and Warren Martin each $250, to be paid out of the property heretofore devised to her by her husband, Thomas Bradford, in his last will and testament; $1,000 to Ellis Bradford, payable out of the said property devised to her by her husband, as aforesaid.

In paragraph 4 of her will she says, “I give, devise and bequeath to my daughter, Olive Bell Martin, * * * all of the residue and remainder of my estate, including the residue of all property of every kind which I may now be possessed of or entitled to, or in which I may have any interest by devise under the provisions of the last will and testament of my husband, * * *” and claims by reason of the foregoing matters defendant is the fee-simple owner of said property.

In a third division she makes all of the allegations of divisions one and two a part hereof, and further sets out the proceedings in the Thomas Bradford estate where, in the petition of Mary Ann Bradford for appointment as executrix, she alleges that “by the terms of the will of said deceased, all property of said deceased was left to the undersigned, Mary Ann Bradford,” and, further, that in her final report as executrix she claimed that by the terms of said will of the deceased she is entitled to all of the property in said estate. She alleges plaintiff had notice of hearing of final report, her discharge as such executrix on the 28th of October, 1902, and that the plaintiff acquiesced in the claim of the said Mary Ann Bradford in the said petition and final report, and that by reason thereof plaintiff is estopped from now claiming that Mary Ann Bradford did not take a fee-simple title.

The plaintiff demurs to each division of the answer, on the ground that the matter stated in the divisions constitute no defense to plaintiff's petition herein, and do not entitle the defendant to relief demanded or any relief. Each ground of the demurrer was sustained by the court.

[1] Aside from the estoppel pleaded in the third division of the answer, the whole question must turn on the construction of the will of Thomas Bradford. It is too well settled to need citation of authority that the will is to read by its four corners, and the intent of the testator must govern. All provisions therein are to be given full force and effect if possible.

[2] It is equally settled that where there are inconsistent or repugnant provisions, the first provision is held to express the intent of the testator, and the inconsistent or repugnant provisions are void. Elberts v. Elberts, 159 Iowa, 332, 141 N. W. 57;Goldsmith v. Petersen, 159 Iowa, 692, 141 N. W. 60;Rona v. Meier, 47 Iowa, 607, 29 Am. Rep. 493.

[3] When the gift to the first taker is absolute, the estate is exhausted and nothing remains of which disposition can be made. Reichauer v. Born, 151 Iowa, 456, 131 N. W. 705;Law v. Douglass, 107 Iowa, 606, 78 N. W. 212; Elberts v. Elberts, supra.

[4] Counsel suggests that a fixed rule ought to be made in this state to harmonize what they claim is an apparent conflict between the various opinions of this court on this question. They ask an impossibility. It is a rare thing to find two wills that are worded the same, and in many instances the addition or the subtraction of one word may change the whole effect of a will. The best that can be done under such circumstances is to lay down general rules that will apply to wills indiscriminately, and, after having so done, then each will is to be construed in the light of these general rules and the context thereof.

It is to be noted under the first paragraph of the will the decedent gave to his wife, Mary Ann Bradford, all of his property “absolutely” and subsequently expresses a “wish” that at her death, out of what remains, a certain disposition is to be made thereof. The word “absolutely” in law has a varied meaning, but when unqualifiedly used with reference to titles or interest in land, its meaning is fairly well settled. Originally the two titles most discussed were “fee simple” and “allodium” (which meant absolute). See Bouv. Law Dict. (Rawle Ed.) 134; Wallace v. Harmsted, 44...