Hiller v. Herrick, 33444.

• Decision Date: 29 September 1920
• Docket Number: No. 33444.,33444.
• Citation: 179 N.W. 113,189 Iowa 668
• Parties: HILLER ET AL. v. HERRICK ET AL.
• Court: Iowa Supreme Court

189 Iowa 668

179 N.W. 113

HILLER ET AL.

v.HERRICK ET AL.

No. 33444.

Supreme Court of Iowa.

Sept. 29, 1920.

Appeal from District Court, Blackhawk County; H. B. Boies, Judge.

Action to quiet title to real estate. Decree for the defendants, and plaintiffs appeal. Affirmed.Mears & Lovejoy, of Waterloo, for appellants.

E. H. McCoy, P. E. Ritz, Courtright & Arbuckle, and Pickett, Swisher & Farwell, all of Waterloo, for appellees.

WEAVER, C. J.

The case was tried below upon an agreed statement of the facts. That statement, so far as it materially affects the questions of law presented for our consideration, may be abbreviated as follows:

On August 24, 1895, Lorenzo Moore died testate in this state seized of a farm of 120 acres in Blackhawk county. He was survived by his wife, Hannah Moore, and nine children of their marriage, to wit, Clara Hiller, Charles E. Moore, Emily Spencer, Oliver H. Moore, Kent K. Moore, Anna Holland, Mary S. Moore, Harry Moore, and Rebecca Herrick. The will left by the deceased, as originally drawn, was executed by the testator January 23, 1892, and provided for the disposition of his estate as follows:

“I give and bequeath to my beloved wife, Hannah Moore, should she survive me, all property, both real and personal, of which I may die seized at the time of my death.”

“I further direct that at the death of my wife all property, both real and personal, shall be equally divided, share and share alike, to my legal heirs.”

On August 20, 1895, four days before his death, the testator added a codicil to his will in which he used the following language:

“At the death of my wife, Hannah Moore, I desire and direct that all the property both real and personal then remaining, shall be divided between my legal heirs, share and share alike.”

As already stated, the testator was survived by his wife and all of their nine children. The wife remained in the possession, use, and control of the property until her death intestate on February 7, 1904. In the interim between the death of Lorenzo Moore and death of the widow, Hannah Moore, their daughter Rebecca Herrick, died testate, devising all her estate to her husband, George W. Herrick, who has since died, leaving heirs. The nature of this controversy is such that further tracing of the line of descent of the property left by Lorenzo Moore is not necessary. The plaintiffs are the eight surviving children of Lorenzo Moore. The defendants are the claimants by descent to whatever title George W. Herrick acquired by devise from his deceased wife, Rebecca. It is the claim of plaintiffs that the devise by the will of Lorenzo Moore to his wife, Hannah Moore, was of an absolute fee, and Rebecca took nothing under said instrument; and as she died in the lifetime of her mother she acquired nothing from the estate of the latter. If, then, Rebecca was vested with no title or interest by the will of her father, and is not entitled to claim anything through her mother her own will, naming her husband, George W. Herrick, as her devisee, was, of course inoperative as far as this property is concerned. The defendants assert title to the one-ninth interest in the land on the theory that the will of Lorenzo Moore devised to his wife only a life estate, with added power to sell and dispose of the land (a power which she never exercised), and the remainder, subject to said life estate and power of sale, was vested in the nine children of the testator and life tenant in equal shares, at the death of Lorenzo Moore. If this theory be correct, then Rebecca Herrick died seized of an equal one-ninth share in such remainder, which interest passed by her will to her husband, George W. Herrick, and through him to the defendants.

The trial court held with the defendant's theory of the law, but adopted the view that the devise of a life estate to the widow, Hannah Moore, was not in lieu of dower, and by its decree confirmed the defendant's title to two-thirds of the disputed one-ninth share of the land in controversy. The land having by consent of the parties been sold pending litigation, the decree provided for a partition of the proceeds of sale on the basis of the finding here stated. From this adjudication plaintiffs appeal.

[1] I. At the threshold of their case, appellants very properly discuss the nature of the provision made by Lorenzo Moore's will for the benefit of his wife, and they insist that the clear intent of the testator was to vest his widow with the entire fee of the estate. In support of that contention they review with much ability and force the familiar precedents which this very fruitful species of litigation has called into existence. That the intent of the testator is to prevail is conceded. It is the most familiar rule or phrase in the law of testamentary construction, but unfortunately is sometimes neglected in the search for precedents to sustain a desired conclusion. In no other class of cases is mere precedent as to the use or meaning of human language of so little real value. No two men make their wills under precisely similar circumstances and words used to express a certain intent in one case may be employed with a very different intent in another. Precedents in such cases may be very properly employed as aids, but they should not lead either court or counsel to insist on a construction of a will, which, in view of the situation disclosed in the particular case under inquiry, it is clear was not in the mind of the testator.

The average husband and father in anticipation of death desires to make such disposition of his estate as will best serve the interest of his family. Ordinarily he makes first provision for his wife, and subject to her needs and comfort he provides for his children; and, in the absence of reasons influencing him to show preference between them, he treats the latter on terms of equality. To accomplish this end, one of the most common and perhaps most reasonable plans adopted is for the father to leave the estate largely or wholly to the wife for life, with remainder over to their children in equal shares. It is also very common, and apparently increasingly common, for the testator to add to the life estate for his widow a power to sell and dispose of the property if she shall so elect or need. In the absence of special circumstances indicating some purpose to be served by making the remainder to his children contingent on any event except his own death, the natural and inevitable conclusion in the human mind, independently of any rule of law, is that in so providing by his will he intends to vest his children and each of them with a share in his estate of which share the child shall come into possession and enjoyment at the death of his or her mother who is the preferred beneficiary of his bounty.

[2] The form in which this purpose is expressed is not fixed or invariable. Wills are often drawn by persons having little or no knowledge of law, and words are often employed, even by lawyers, in other than their strict legal meaning; but the true and actual meaning of the testator will be allowed to prevail if in view of the instrument as a whole and the circumstances attending its making such intent is fairly shown. McKemey v. Ketchum, 175 N. W. 325;Rundel v. Matter, 184 Iowa, 518, 168 N. W. 907;Johnson v. Coler, 174 N. W. 657;MacEachron v. Trustees, 179 N. W. 109, filed at this sitting.

Coming directly to the will in the instant case, appellants argue, not only that the language of the instrument shows the testator's intent to devise the entire fee to his wife, but that this court is by its former decisions committed to such construction. They point insistently to the words, “I give and bequeath to my wife, Hannah Moore, should she survive me, all property, both real and personal, of which I may be seized at the time of my death,” and say that these words have always been held sufficient to devise a fee. This is doubtless true in all cases where no other language is employed in connection therewith to limit or modify such devise. It is equally true and well settled, however, that such language is entirely consistent with the devise of a life estate, where the will as a whole makes evident the testator's intent to create such estate. It is also to be admitted that among our precedents cases may be found where the express or implied power given the devisee to dispose of the devised property is held inconsistent with the idea of a mere life estate, but counsel concede, as indeed they must, that a power of sale may be added to a life estate without enlarging it to a fee.

[3] This is the natural result of an application of the rule so frequently cited by which courts are constrained to give effect to testator's intent as it shall appear to be expressed by the will as a whole in the light of all the circumstances attendant upon its execution without regard to technical rules of construction. Of course where different provisions of the will are found to be irreconcilable or so repugnant that both cannot stand, the first expression must prevail, and if in the will now before us the testator had clearly and expressly declared his purpose to give the property to his wife in fee, it would be given effect accordingly by the court, even though in a later clause he had attempted to limit or control her right to dispose of it as she should see fit. But he did not in express terms give her the fee. True he did use words sufficient to carry the fee, had they not been accompanied by other terms and directions indicating a purpose to create for her only a life estate with power to convey the fee. It is the duty of the court, if it be reasonably possible, to so construe the will as to give effect to all its provisions, and nothing be held void for repugnancy. See Richards v. Richards, 155 Iowa, 394, 136 N. W. 132;Elberts v. Elberts, 159 Iowa, 332, 141 N. W. 57. And this, in our judgment, is what the court below did.

If it should be thought...