Channell v. Aldinger

Sherwln, J.

The clause of the will which is before us for construction is in the following words: “I give and bequeath to my wife, Louisa Stratton, all of my real estate and personal property of all and every kind that I may be possessed of at the time of my decease, and in case of my wife, Louisa Stratton, dying without issue and without devising of said property by will, then, in that case, the said property willed to her by me shall descend to Kachel Aldinger, if living; if not, then to her heirs, forever.” The district court decreed that the plaintiff took thereunder an absolute title in fee to the real estate left by the testator, her husband. There is no serious difficulty in determining the intent of the testator from the language of the will itself. In the fore part of the clause an absolute bequest is made of his entire estate. Nothing is contained therein which in any way' indicated a purpose to create a life estate only. In the latter part of the clause the language which it is contended limits the estate to one for life in our judgment recognizes the bequest as in fee. It distinctly says that, if the de-visee shall not have disposed of the property by will at the time of her death, then it shall descend to the persons named by the testator. We think it conclusive that the testator intended to and supposed that he was in fact making a will which would vest his entire estate absolutely in his wife, with full power of disposition for any purpose; and, if this is true, it follows that his attempt to direct 'Go whom it should go in case it was not disposed of by his primary devisee is repugnant to his gift and void. This ule is thoroughly settled by our own cases and by the great weight of authority elsewhere. Among .our own ■ ases so holding are Bills v. Bills, 80 Iowa, 269; Law v. Douglass, 107 Iowa, 606; Hambel v. Hambel, 109 Iowa, 459; In re Barrett's Will, 111 Iowa, 570. In In re Estate of Proctor, 95 Iowa, 172, relied upon by the appellants, the devise to the wife expressly stated that it was for life, and the power of disposition was limited to sales necessary to furnish her support and pay debts — a decidedly different case from the one at bar. And in Podaril v. Clark, 118 Iowa, 264, the devise was also for the devisee’s natural lifetime, with an additional grant of power of disposal in a separate clause of the will. The conclusion we reach on this branch of the case eliminates the question of a conditional fee, and we will not further notice it.

The demurrer was rightly overruled, and the judgment is AEEIRMED.