Mann v. Seibert
| Decision Date | 21 November 1929 |
| Docket Number | 40027 |
| Citation | 227 N.W. 614,209 Iowa 76 |
| Parties | WALTER E. MANN et al., Appellees, v. KATE SEIBERT, Appellee WALTER A. CRENSHAW et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Taylor District Court.--HOMER A. FULLER, Judge.
Action in equity for the specific performance of a real estate contract and to recover judgment in favor of plaintiffs for $ 5,100, with interest. The appeal is primarily concerned with the construction of the wills of Mary M. Crenshaw and J. F Crenshaw, husband and wife. The opinion states the material facts. The trial court adjudged and decreed that the equities of the case were in favor of plaintiffs and the intervener Fred O. Parrish. The intervener-defendants appeal. The decree entered is--Affirmed.
Affirmed.
Donald F. Wisdom, for appellants.
Higbee & McEniry and H. P. Jaqua, for Mann et al., appellees.
Wisdom & Kirketeg, for Parrish, appellee.
J. N Hughes and F. D. Wisdom, for Seibert, appellee.
DE GRAFF, J.
Two well recognized rules of law governing the construction of a will may, at the outset, be stated: First, when a testator by the terms of his will vests a fee-simple title in the devisee, and in another clause of said will creates a remainder in the devised property to a third party, the remainder is void for repugnancy. Luckey v. McCray 125 Iowa 691, 101 N.W. 516. Second, when a testator devises a life estate, with a remainder over to a third party, the life estate is not converted into a fee by reason of the addition of a power granted to the life tenant to sell any or all of the portion of the devised property he may deem proper. In other words, a limited power of disposal adds nothing to a life estate with a remainder over to a third person or persons. Olson v. Weber, 194 Iowa 512 (27 A. L. R. 1370, 187 N.W. 465); Steiff v. Seibert, 128 Iowa 746, 105 N.W. 328. The question now before us is whether the will of Mary M. Crenshaw devised to J. F. Crenshaw, her husband, an absolute fee-simple title to 80 acres of Taylor County, Iowa, land, or a life estate therein, with a limited power of disposal.
The plaintiff-appellees (remaindermen under the will of Mary M. Crenshaw) in the filed petition pray for the specific performance of a real estate contract entered into between them and Kate Seibert, defendant-appellee. This contract covered the 80-acre tract in question which was devised by its owner, Mary M. Crenshaw, in the instant will. The intervener-appellee, Fred O. Parrish, is an assignee of the interest of one of the plaintiffs, Clara Underwood, in the said 80 acres. The interveners-appellants claim title to the 80 acres, and the issue tendered by the pleadings is whether or not the intervener-appellants are, as they allege in their petitions of intervention, fee-simple title holders of the land.
Mary M. Crenshaw and J. F. Crenshaw were husband and wife. Both died testate, the wife having predeceased the husband. We will first construe the will of Mary M. Crenshaw. If the plaintiff-appellees (remaindermen) are correct in their contention, it must be said, and we must hold, that the title which they claim can be traced to and through the will of Mary M. Crenshaw. The second and third items of her will read as follows:
The first sentence of the second item of her will deserves serious consideration in the solution of the question before us. This sentence is: "Subject only to my disposition as hereinafter provided of that part of my property which he [the husband] may leave at the time of his death * * *" Unquestionably, she reserved the right to dispose of the real property by her will, and it follows that she did not give her husband the right to dispose of the same by will. He did attempt to do so, and to other parties than are named in her will as remaindermen. The power of disposal in the husband as devisee, was limited. Resultantly, the husband did not acquire an absolute fee-simple title. The will is unambiguous, but in any event, her intent is the desideratum. As a matter of law, she could not devise an absolute title in her husband to the 80 acres and at the same instant and in the same will create a remainder in said land in her brothers and sisters. True, the devisee husband, under her will, had the use of the said 80 acres during his life, together with all the income and profits therefrom; but she did contemplate that her husband might not dispose of all of the property devised to him, and her intent is clear what the result should be if he did not exercise the limited right of disposal during his lifetime. A testator cannot create a fee with absolute power of disposal and at the same time clog that power of alienation by limitation over to another. Law v. Douglass, 107...
To continue reading
Request your trial