Horak v. Stanley, 41943.
| Decision Date | 20 June 1933 |
| Docket Number | No. 41943.,41943. |
| Parties | HORAK v. STANLEY et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; H. C. Ring, Judge.
Action in equity for the construction of the will of Mary Stanley Horak, deceased, and to quiet title to real property. Judgment dismissing the plaintiff's petition and for costs, and he appeals.
Affirmed.
George F. Buresh, of Cedar Rapids, for appellant.
B. L. Wick, of Cedar Rapids, for appellees.
Mary Stanley Horak, on November 4, 1931, died testate without issue, survived by her husband, appellant herein, and two brothers. The controversy is as to the estate devised by her will, which is as follows:
“Mary Horak 10-23-31.
I wish to leave my husband, Fred Horak, all property both real and personal, for his perfectly free use during his lifetime. There are a few family heirlooms that I want handed unto my nephews and niece, Robert Maurice Stanly, James Sidney Stanly and Catherine M. Stanly.
Mary Stanley Horak.
Witnesses
Alice I. Ross
Lucy Findull.”
[1][2] It is the claim of appellant that the foregoing instrument devised the fee to the real estate to him. The question is a somewhat narrow one and involves only the ascertainment of the intention of the testatrix. The will was written by a layman without regard to technical legal accuracy. The intention of the testatrix must be gathered from the instrument which is obviously without any ambiguity. The devise is of the perfectly free use of the real and personal property of the testatrix during the lifetime of the devisee.
[3][4][5] It is contended by appellant that a gift of real estate for life without a gift over passes the whole estate to the devisee. This contention assumes too much. It overlooks the cardinal rule of construction which is the ascertainment of the intention of the testator. If the devise be construed as to a life estate only, intestacy as to the fee follows as a matter of course. Wills will be construed, where it is possible to do so and give full effect to the intention of the testator, so as to avoid intestacy. We said in Busby v. Busby, 137 Iowa, 57, 114 N. W. 559, 561, that “the voice of authority is against the presumption of partial intestacy by intention; and where possible such construction will be given a will presented as to work disposition of the entire estate.” This rule is not, however, one of law, but a rule of construction in aid of the discovery of the testator's intention. In re Rogers' Estate, 245 Pa. 206, 91 A. 351, L. R. A. 1917A, 168. Necessarily, it does not follow as a matter of law that a will devising a life estate will be interpreted as a devise of the fee simply because to otherwise interpret it would work intestacy as to the remainder. It is the intention that governs in such cases. Harvey v. Clayton, 206 Iowa, 187, 220 N. W. 25;Central Trust Co. v. Langan, 197 Iowa, 1202, 198 N. W. 652;Paxton v. Paxton, 141 Iowa, 96, 119 N. W. 284;Steiff v. Seibert, 128 Iowa, 746, 105 N. W. 328, 6 L. R. A. (N. S.) 1186.
[6] The intention of...
To continue reading
Request your trial