Fulton v. Fulton

• Decision Date: 06 April 1917
• Docket Number: No. 30452.,30452.
• Citation: 179 Iowa 948,162 N.W. 253
• Parties: FULTON ET AL. v. FULTON.
• Court: Iowa Supreme Court

179 Iowa 948

162 N.W. 253

FULTON ET AL.

v.FULTON.

No. 30452.

Supreme Court of Iowa.

April 6, 1917.

Deemer and Weaver, JJ., dissenting.

Appeal from District Court, Butler County; M. F. Edwards, Judge.

Action to construe a will. The question presented is whether the children of the testator took a vested or a contingent remainder at the time of his death. The remainder was subject to the life estate of the widow. One son died without issue after the death of the testator, but before the death of the widow. The deceased son left a widow surviving him. This widow claims, as sole devisee of her husband, the remainder alleged to have vested in her husband upon the death of the testator. The trial court held that the remainder was contingent and not vested. The widow of the deceased son has appealed. Affirmed.W. C. Shepard, of Allison, for appellant.

C. G. Burling, of Clarksville, for appellees.

EVANS, J.

The testator was Levi Fulton. He left surviving him a widow and eight children. He devised certain real estate in Butler county, the material part of his will being as follows:

“First: After the payment of my just debts, including funeral expenses and expenses of administration, I give, devise and bequeath unto my wife, Elizabeth Fulton, to hold during the balance of her natural life, and enjoy the rents and profits therefrom, the following described property, to wit: [Describing it.]

Second: Upon the death of my wife, I direct that all my property, real and personal shall be divided between my eight children, viz.: [Naming them.] In case of the death of any of said children without issue living, then the share of such child, shall be divided equally among the surviving children, or their legal heirs.”

One of the surviving children of the testator was John Fulton, who died without issue before the death of the surviving widow of the testator. If John Fulton had survived the widow of the testator he would have taken under the will as one of the remaindermen.

[1][2] It is contended for the appellant that John Fulton took at the death of the testator a vested remainder, the enjoyment of which only was postponed during the life of the surviving widow. On the other hand, it is contended for appellees that the children of the testator took a contingent remainder only, and that by the terms of the will, the remainder could vest only upon the death of the surviving widow, and vest then only in such of the children as should survive the widow and in the issue of those deceased. The rules of construction herein involved are well settled, but the application of them to the particular case is often very difficult. Many of the cases which have been considered are near the border line, and the distinctions drawn are sometimes very close. It is well settled that unless the intent of the testator is made to appear to the contrary, a devise will be construed in favor of a vested remainder instead of a contingent. The cardinal rule of construction, however, is that the intent of the testator as manifested by the terms of the will must be given effect. Does the will before us fairly indicate by its terms that the testator intended to make substitution for such of his children as should die without issue before the time of the distribution provided “upon the death of my wife”?

The appellant contends that the case is similar in its facts to Blain v. Dean, 160 Iowa, 708, 142 N. W. 418, whereas the appellees contend that the case is ruled by Birdsall v. Birdsall, 157 Iowa, 363, 132 N. W. 809, 36 L. R. A. (N. S.) 1121, and Baker v. Hibbs, 167 Iowa, 174, 149 N. W. 85, and similar previous cases. It is quite clear that the case is not ruled by Blain v. Dean, supra. In that case certain specified property was set aside to the widow for life, and other property was devised to the children. This latter provision of the will necessarily took effect upon the death of the testator, there being no condition or contingency in reference thereto. The remainder subject to the life estate of the widow (and of another) was also devised to the children after the death of the life tenant in the same shares as in the first provision. It was therefore held in that case that all the interest of the children necessarily vested at the death of the testator. We are clear therefore that this case is not ruled by the Blain Case. More nearly in point are the following cases: Birdsall v. Birdsall, 157 Iowa, 363, 132 N. W. 809, 36 L. R. A. (N. S.) 1121;Baker v. Hibbs, 167 Iowa, 174, 149 N. W. 85;Olsen v. Youngerman, 136 Iowa, 404, 113 N. W. 938;Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71;Wilhelm v. Calder, 102 Iowa, 342, 71 N. W. 214;McClain v. Capper, 98 Iowa, 145, 67 N. W. 102.

[3] 1. There is one feature of this case that is quite decisive, and we give it our first attention. It will be noted that by the terms of the will the testator directed that upon the death of his wife, all his property should be divided among his children, etc. There is no other provision of the will whereby it purports to devise any property to any children. The devise to them is implied by the direction to divide above quoted. In such a case we have held repeatedly that the devise or gift is inseparable from the direction to divide, and where the directed division is by the terms of the will postponed to a future date, the gift is likewise postponed. In such a case the remaindermen take a contingent and not a vested remainder. And this is especially so where the will imposes the condition that the remaindermen survive the future event or have issue. This was the holding in McClain v. Capper, 98 Iowa, 145, 67 N. W. 102;Olsen v. Youngerman, 136 Iowa, 404, 113 N. W. 938;Lingo v. Smith, 156 N. W. 402. In the Lingo Case we said:

“In Olsen v. Youngerman, 136 Iowa, 404, 113 N. W. 938, the gift was construed to be within the well-established rule that, where the gift is implied from the direction to divide or pay at a future time, the gift is future, not immediate; contingent, not vested. In other words, where the gift is to be implied from the direction to divide or distribute, it necessarily is inseparable from that direction and must partake of its quality, so that, if one is contingent, the other must be. See McClain v. Capper, 98 Iowa, 145, 67 N. W. 102;In re Kountz's Estate, 213 Pa. 390, 62 Atl. 1103, 3 L. R. A. (N. S.) 639, 5 Ann. Cas. 427;In re Crane, 164 N. Y. 71, 58 N. E. 47;McCartney v. Osburn, 118 Ill. 403, 9 N. E. 211.”

In the McClain Case the will contained the following provision:

“When my youngest child arrives at full age, I desire that my real estate * * * be equally divided between my children [naming them], their heirs, or survivors of them.”

We held that no estate vested until the youngest child had arrived at majority, and that another child that died testate before such event passed no interest in such estate to his devisee. In Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71, the will contained the following:

“I give, devise, and bequeath all my property, real estate described as follows [describing real estate in question], and personal property, to my wife, Elizabeth Taylor, for her use and controlduring her widowhood, and at her decease or marriage to be equally divided between my children or their heirs as the law directs.” etc.

We held that the time of the vesting of the interest of the children was postponed to the decease or marriage of the widow, and that substitution was intended for any of the children who should die before such event. In Olsen v. Youngerman, 136 Iowa, 404, 113 N. W. 938, we construed similar provisions in a will to the same result.

2. If the will under consideration fairly discloses the intention of the testator that only those of his children as should survive his widow should take under its provisions, then the holding of the trial court is well sustained by our previous cases. In Wilhelm v. Calder, 102 Iowa, 342, 71 N. W. 214, the will contained the following provision:

“The residue of my estate, both real and personal, I give and bequeath to my children, viz., Mary E. Calder, Edith M. Calder, Chas. A. Calder, Adeline E. Calder, Lewis B. Calder, Cornelia C. Calder, and George A. Calder, equally; but the said property is to be held by my said executor hereinafter named until after the death of my said wife, Alcinda A. Calder. And, in the event that my said wife shall die before the youngest of my surviving children become of age, then said property shall be held by my said executor until my said youngest surviving child shall become of age, at which time the whole of the remaining part of my said estate shall be divided equally between my said children then living, share and share alike, and descend to them in fee simple.”

We held that the remainder did not vest before the death of the surviving wife nor before the majority of the youngest child, and that a child of the testator who died before such event took nothing under the will in his lifetime. The Birdsall Case, 157 Iowa, 365, 132 N. W. 809, 36 L. R. A. (N. S.) 1121, involved a provision of a will devising a life estate to Birdsall and his wife and “at their death” to such of their children as should be living at that time.” We held the remainder thus devised to be contingent and not vested. To the same effect is Baker v. Hibbs, 167 Iowa, 179, 149 N. W. 85; also Horner v. Haase, 158 N. W. 548.

It is assumed in the dissent that our holding herein runs counter to Lingo v. Smith, already cited. If this be a correct assumption, then we have overruled our previous cases herein cited without purporting to do so and without the consciousness of having done so. An examination of that case will show that the assumption of the dissent in this regard is not correct. The result in that case did not turn upon the question which is decisive herein. In that case the testator by paragraph 4 of his will devised to his wife a life estate in his farm, with the remainder over to his two...