In re Cooksey's Estate
| Decision Date | 09 April 1926 |
| Docket Number | 37077 |
| Citation | 208 N.W. 337,203 Iowa 754 |
| Parties | IN RE ESTATE OF WILLIAM T. COOKSEY |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 7, 1927.
Appeal from Montgomery District Court.--EARL PETERS, Judge.
Application in probate for an order requiring the trustee of the estate of a testator to turn over to certain persons property disposed of by the widow of the testator, who claims the right to do so under the terms of the will of the testator. From a ruling denying the order prayed for, this appeal is prosecuted.--Reversed and remanded.
Reversed and remanded.
Kimball Peterson, Smith & Peterson, for Emma Cooksey Long, Elizabeth Davis, and David Cooksey, appellants.
Paul V Wilson, for Lucinda Cooksey, appellant.
Hysham & Billings, for Charles T. Schenck, appellee.
Paul W. Richards, for Geraldine Long, Henrietta Long, and Gloria Long, appellees.
FAVILLE, J. DE GRAFF, C. J., and EVANS, VERMILION, ALBERT, and MORLING, JJ., concur. STEVENS, J., dissents.
I.
The testator, William T. Cooksey, died April 11, 1920. His will was dated November 29, 1915, and was duly admitted to probate. Due administration was had upon said estate. The assets of the estate were placed in the hands of the trustee named in said will. By the terms of his will, the testator provided for the payments of debts and funeral expenses, and Item II of said will is as follows:
"Subject to the foregoing provisions, I will, devise and bequeath to my beloved wife, Lucinda Cooksey, all my property, real, personal and mixed, for the term of her natural life, with the power to dispose of and pass clear title to any or all of said property during her lifetime, if she so elects, and the rest, residue and remainder of said property not disposed of by my said wife during her lifetime, I will, shall be disposed of as follows: * * *"
Following said Item II are a number of items making disposition of the remainder of said estate to the children and grandchildren of the testator. The case revolves upon the proper construction to be placed on said Item II of said will.
On or about the 20th day of March, 1924, the widow of said testator executed an instrument by which she undertook to dispose of and pass clear title to all of the property belonging to the estate of the said testator. The said instrument recited that the disposition of said property was made by the said widow in accordance with the provisions of Item II of the will of the said testator. The disposition under the terms of the said instrument was to some extent to the same beneficiaries named in the will of the testator, but did not coincide with it.
Three possible constructions of Item II of the will suggest themselves. First, does the instrument convey a full fee-simple title to the widow? Second, does the will create a life estate in the widow, with power of disposal during her lifetime for her use and needs, and for such purposes only? Third, does the will create a life estate in the widow, with power of disposal by her during her lifetime as she may elect, with remainder over only as to such portion as the widow may not so dispose of during her lifetime?
The question as to whether a provision of a will creates a fee simple, or a life estate with power of disposal, is sometimes a difficult one to determine, under the peculiar phraseology of the instrument under investigation. The question may arise during the lifetime of the beneficiary, as in the instant case; but it arises more frequently after the death of the beneficiary, in a contest between remaindermen under the will and the heirs of the beneficiary, who claim that the latter took in fee simple.
There is some apparent conflict in our early decisions; but the later cases recognize the distinction between an estate for life with such power of disposal as raises it to a fee simple, and an estate for life with power of disposal and remainder over as to the residue of which no disposition is made.
In the construction of all such instruments, it is fundamental and elementary that the intent of the testator, as expressed in the entire written instrument, is controlling. Did the testator, in the case at bar, intend to, and did he, create a fee-simple estate in the widow?
The testator expressly provided in terms that the property was devised and bequeathed to the widow "for the term of her natural life." He then expressly gave her the power to dispose of and pass clear title to any or all of said property during her lifetime "if she so elects." Provision is then made for disposition of the property not so disposed of by the widow during her lifetime, to certain remaindermen.
In Iowa City St. Bank v. Pritchard, 199 Iowa 676, 202 N.W. 512, we said:
In the instant case, the testator gave a life estate in this property to his widow, with the power of disposal in the life tenant during her lifetime, as she might elect, and provided for the devolution of so much of the property as might remain at the death of the life tenant. This power of disposal during the life of the life tenant did not, under the terms of the entire will, convert the bequest of the life estate into an absolute gift of the estate in fee. See cases cited in the Pritchard case, supra. Such was not the evident intent of the testator, as gathered from the instrument as a whole. Had the life tenant died without making disposition of the estate during her lifetime, so much of the same as remained at her death would pass to the remaindermen named in the testator's will, under the terms and provisions of said will. Not being an estate in fee, it would not pass to the heirs of the life tenant.
We hold at this point that, under the terms and provisions of this will, the widow did not take an estate in fee in the property of the testator. See Iowa City St. Bank v. Pritchard, supra, and cases cited therein.
II. There is another line of cases of a somewhat similar character, where the bequest is to a life tenant, with certain powers of disposal for definite purposes specified in the will, and with remainder over as to the residue not disposed of. A case of this character is Hamilton v. Hamilton, 140 Iowa 282; 149 Iowa 321. The provision of the will in said case was a bequest to the husband of the testatrix of all of her property "to have and to hold unto my said husband during his life with power to sell, transfer and dispose of the same or as much thereof as may from time to time be needed for his support and maintenance during his said lifetime," and provision is made for the disposition of the portion of said estate remaining undisposed of at the death of the husband. We held that, under the terms of said will, the life tenant could sell and transfer the property only as provided by the will,--namely, so much thereof as might "be needed for his support and maintenance during his said life-time,"--and that the power conferred in the will gave the beneficiary no license to sell the property and dispose of the proceeds merely to defeat the remaindermen.
There is nothing in the terms and provisions of the will in the instant case that places a limitation upon the power of disposal by the widow, that the same shall be for her support or use and benefit, or for any other specific purpose. Nor is any such purpose or intent on the part of the testator to be gathered from the will in its entirety. Had the testator seen fit to provide that the widow, as life tenant, should have power to sell the property for her care and support, or for her individual use and benefit, or for some specific purpose then such limitation on the power of disposal would be binding and effective. But the will contains no such provision whatever. It is broad and comprehensive in its terms. It gives the widow unlimited power to dispose of said real estate and to pass "clear title" thereto "if she so elects." The power is in no way commensurate with her needs, nor is it in any way limited to a sale of the property by which the purchase price might be substituted in lieu of the property itself. The will does not limit her to a sale of the property, but gives her the broader power to "dispose" of it, if she so elects. This would include a gift. There is no limitation that her power of disposal shall be by sale or exchange or substitution, but the broad and unlimited power is given, to dispose of it "as she elects" and "to pass clear title" by so doing. The case does not fall within the category of those cases where a life estate is created, with a limited power of disposal during the life of the life tenant, for the "support" or "use" of the life tenant, or where there are other limitations with regard to the proceeds that may be derived from the disposal of the property. There are cases where it is apparent from the entire will that the intent...
To continue reading
Request your trial