Were it not for Section 11861, Code of 1924, the daughter of the deceased wife by a prior husband would take nothing under the instant will. This is agreed. The rule of statute, therefore, is in derogation of the common-law rule which recognized that a devise or legacy lapsed if the beneficiary under the will predeceased the testator.
The statutory rule creates substituted beneficiaries, — to wit, the heirs of the deceased devisee or legatee. This substitution, however, is not absolute, but conditional. If the devisee or legatee dies before the testator, then his or her heirs shall inherit the property so devised or bequeathed, but upon the condition, to wit, when and only in the event that the terms of the will do not manifest a contrary intent. The quest, therefore, is the usual one, — to find the intent of the testator. This intent is discoverable from the language of the will, when read, interpreted, and understood in the light of the situation surrounding the testator at the time of making his will.
Let us visualize the factual environment at the time in question. The testator was the father of nine children, of whom eight were then living. To them and the children of the deceased child he gave all he could legally give. He had a wife. To her he gave the legal minimum. The major part of his property when he made the will was in real estate. He did not wish to devise the land in specie, so he mentally converted it, which, in legal phraseology, constituted an equitable conversion. He said *Page 1237 to himself: "I will give, and do give, the spouse one third of my property, now viewed as personalty." Of course, he knew, or was bound to know, that the wife, if she survived him, might elect to take under the law, and not under the will; but this fact, in my judgment, has no bearing on the declaration of his intent then and there made. Her subsequent desire or intent, which never found expression, is not a consideration in the discovery of his intent. He did expressly and explicitly give to his spouse one third of all he had in personalty.
A widow's interest in her husband's estate is determined by the law in force at the death of the husband. The testator's wife never became his widow. The right to take property by devise or descent is a statutory privilege. The statutes cover the entire field of succession, either by descent or by will.
The statute of descent is an incident of the right of private property. It recognizes that blood is thicker than water; that kin is to be preferred to a stranger in the descent of property.Carpenter v. Severin, 201 Iowa 969, 977 (43 A.L.R. 1340).
These concepts should be recognized, and the so-called "worthier title" doctrine is not applicable in the instant case. The question in the last analysis is: Can it be said, under the terms of the will and the facts surrounding its making, that the testator did not intend that strangers to him should take under his will? If any inference is to be drawn, it should be indulged in his favor, and in favor of his own kin.
I would reverse.