Brown v. Brown, 41113.

• Decision Date: 09 February 1932
• Docket Number: No. 41113.,41113.
• Citation: 213 Iowa 998,240 N.W. 910
• Parties: BROWN v. BROWN ET AL.
• Court: Iowa Supreme Court

213 Iowa 998

240 N.W. 910

BROWN

v.BROWN ET AL.

No. 41113.

Supreme Court of Iowa.

Feb. 9, 1932.

Appeal from District Court, Jones County; H. C. Ring, Judge.

Suit by Nettie A. Brown, as executrix of the last will and testament of Oliver S. Brown, deceased, and as administratrix of the estate of Elizabeth Brown, deceased (who was the surviving widow of Oliver S. Brown, deceased), against Lowell Brown and Leslie Brown (grandchildren of Oliver S. Brown) and Maud Brown, their guardian, for construction of the will of Oliver S. Brown. The court construed the will contrary to the contentions of the plaintiff, and she appeals.

Affirmed.

EVANS, J., dissenting.

Clifford B. Paul, of Anamosa, for appellant.

Rhinehart & McLaughlin, of Anamosa, for appellees.

MORLING, J.

The will in question directs payment of debts, and then provides: “Par. 2. All my property of whatever nature and wherever found I give, devise and bequeath to my wife, Elizabeth Brown, for her sole use and benefit for and during her natural life with full power to sell, convey and dispose of any and all of said property and to invest and reinvest the proceeds thereof and to use any and all of said property and the proceeds thereof and the income therefrom for and during her natural life for her maintenance, care and support.”

The next paragraph gives the homestead to the daughter Nettie if upon the death of the widow it has not been disposed of; if disposed of, it gives to the daughter $5,000. The gift is on condition that the daughter remain with or near and care for the testator and his wife during their lives. It says: “I do not desire that my said daughter shall contribute any money or property to our support,” and, in the event that the daughter does not comply with the condition, the homestead or the money is bequeathed to her and to the son equally. The will provides: “Subject to the above provisions made for my said wife and my said daughter all the rest, residue and remainder of my said property I give, devise and bequeath to my said daughter Nettie A. Brown and to my said Son Elmo R. Brown, share and share alike.” The bequest in favor of the wife is declared to be in lieu of all rights and interests which she would have had in the absence of will. The plaintiff's contention is that the bequest to the widow created a life estate in virtue whereof the income during her life belonged to the widow, that the power of sale was in addition to the life estate, and by it the widow was given “unlimited power during her lifetime to dispose of any and all property of said estate for any purpose even without receiving value therefor and to use and consume the same as she saw fit.” In short, the appellant's contention is that unconsumed income was the property of the widow; that the widow might give away any of the property belonging to the estate, including such unconsumed income.

[1][2][3][4] The purpose of construction is to ascertain and give effect to the intention of the testator. The will must be construed as an entirety and effect given as far as possible to each provision. The several provisions should, so far as possible, be harmonized and made subservient to the testator's main purpose. The first clause of the second paragraph standing alone would create a life estate. The effect of the second clause, namely, “with full power to sell, convey and dispose of any...