I concur in the court's judgment and its opinion but I should prefer to reverse the judgment of the trial court on the broader ground that under the circumstances surrounding the testator and the language used in the will, the term "children" includes "grandchildren."
In Parish v. Welton, 194 Iowa 1274, 1277, 190 N.W. 947, 949, we said:
"It is undoubtedly true that the word `children' may, in some instances, be construed to include grandchildren, where it is evident from the context of the will that such was the plain intent of the testator. Bowker v. Bowker, 148 Mass. 198 (19 N.E. 213)." *Page 485
We did not so construe the word children in the Parish case for we held "there is nothing in the context of the will to indicate that the intent of the testator was to include grandchildren." But the above statement in the opinion is a clear recognition of what appears to be the almost universal rule. I think it is also the general rule that the term "children" will be held to include grandchildren when the provisions of the will would be inoperative without such construction. This was the rule at common law. In Hodge v. Lovell's Trustee, 262 Ky. 509, 514,90 S.W.2d 683, 686, it is stated:
"At common law the import of the term `children' used as descriptive of persons to take under a will could be enlarged so as to embrace grandchildren (1) from necessity, where the will would be otherwise inoperative, and (2) where the context of the instrument as a whole indicated that the testator did not intend to use the term `children' in its restricted meaning but in a broader sense, and this rule of construction prevailed in this state previous to statutory regulation on this subject. Kentucky Statutes, secs. 2064, 4841, and 463."
In Spencer v. Title Guarantee Loan Trust Co., 222 Ala. 221, 223, 132 So. 32, 34, it is stated:
"An oft-quoted rule in this regard ranges such cases into two classes:
"`1st, from necessity — where the will would remain inoperative, unless the sense of the word "children" were extended beyond its natural import and, 2d, where the testator has clearly shown, that he did not intend to use the term "children" in its proper and actual meaning, but in a more extensive sense.' McGuire v. Westmoreland, 36 Ala. 595. * * *
"An examination of the cases here and elsewhere shows this rule is often applied where the general scheme of the will shows a purpose to distribute the estate among the natural objects of the testator's bounty, share and share alike. In such case there is a strong presumption against an intention to disinherit."
A few of the numerous authorities where the term "child" or "children" was held to include grandchildren are: Whittaker *Page 486 v. Fitzpatrick, 268 Ky. 120, 103 S.W.2d 670; Von Fell v. Spirling, 96 N.J. Eq. 20, 124 A. 518; In re Wait's Estate, 42 N.Y.S.2d 735; Tucker v. Tucker, 259 Ky. 361, 82 S.W.2d 458; Peak v. Peak, Mo., 195 S.W. 993. See, also, 7 Words and Phrases, Perm. Ed., pages 66 to 69.
The Massachusetts decision (Bowker v. Bowker, 148 Mass. 198, 200, 203, 19 N.E. 213, 214) cited with approval in the foregoing quotation from Parish v. Welton, 194 Iowa 1274, 190 N.W. 947, is quite similar to the instant case. There the testator's daughter, Eunice, was dead at the time the will was executed and in the first clause of the will provision was made that her children would take their "deceased parent's share." The distribution was to be after a life estate in testator's wife, and a later clause provided: "`* * * if any of my children die without issue, their shares are to be added to those of the other children.'" One other daughter died without issue during the pendency of the life tenancy and after the widow died the question was whether Eunice's children would share in the division of the share that would have gone to the other daughter who had died. In holding they would the court stated:
"Even if Eunice was not then living [when the will was executed], the share appropriated to her children might, in the ordinary, if not very accurate, use of language, be spoken of as her share, and thus be included in the phrase shares `of the other children,' when it is provided that these shall be increased by the decease of any child without issue. Especially is this so when, in the first clause, the share appropriated to the children of Eunice is spoken of as their `deceased parent's share.' The word `children' may be interpreted as including grandchildren, representatives of a deceased child, where it can fairly be seen from the context that such was the intention of the testator as exhibited in his will."
In Peak v. Peak, Mo., 195 S.W. 993, 994, the testator's will was drawn after the death of one son, Howard. One clause of the will left a life estate to his wife and a dollar to each of testator's children then living and a dollar each to "`the heirs of Howard Peak.'" The next clause left the property at the *Page 487 death of the wife to be "`divided equally between all of my children herein named.'" In holding Howard's five children or the testator's grandchildren were within the meaning of the clause "all of my children herein named", the opinion states:
"In this case the father and testator, when making his will, held in mind all of his surviving children, and the further fact that his son Howard Peak had deceased, leaving five children described as the `heirs of Howard Peak,' and to whom he gave `one dollar each,' being the same bequest which he made to his living sons named in the will. This will must be construed in the light of the facts that it was made with full knowledge by the testator of the existence of his named children and the death of one, who was also specifically named, leaving five children connoted by the testator as the `heirs of Howard Peak.' * * * While it is true in a strict grammatical sense that the term `children' does not necessarily include others than the immediate offspring of the testator, yet it may acquire contextually a broader meaning and include grandchildren, if such was the evident intent of the willmaker as ascertained from a consideration of the conditions and circumstances of the execution of the instrument and the motive and purpose expressed in its language. For, after all, it is the design of the law expressed by the statute of wills that the disposition by a man of his property after his death should reflect his will in that manner, unless the carrying out of his will would run counter to the law itself. In the case at bar it could not be contended with any show of reason that the making of the same provisions for the existing children of the dead son which were made for the living brothers and sisters is opposed to any legal principle. On the contrary, it would be the most natural action on the part of a normal parent and would be in strict conformity with our statutes of descent in case no will had been made. R.S. 1909, § 546; 40 Cyc. 1412.
"With these elemental principles in mind, a glance at the language of the present will is sufficient to reveal that it was the lawful intent of the testator by the devise in question to give the children of Howard Peak the same interest in the *Page 488 remainder of his father's estate which was devised to his brothers and sisters."
The above two cases from which quotations have been made illustrate the holdings generally. I think a stronger case is made for the enlarged meaning of the word "children" when the testator's child is dead at the time the will is drawn and some recognition is made in the will that the children of the testator's deceased child are receiving their deceased parent's share. That is the situation in the instant case. In Article II of the will the testator mentions his deceased daughter and then gives to her children "the share that would have fallen to my daughter." Thereafter in Article III he disposes of the income and corpus of his realty and each time provides for division "among my children named in Article II."
This will was in the testator's handwriting. He had in mind that one daughter was already dead, but that she had children who should take her share. He had in mind that others of his sons and daughters might die before his estate would ultimately be distributed and he made provision that their children, if any, should take their deceased parent's share. The design of the will is clearly to leave the income and corpus of his realty to his children who are living at the time fixed for distribution and if any of testator's children be dead, then that share shall go to his or her descendants — testator's grandchildren. There is no reason suggested why the testator would not make the same provisions for the existing children of his dead daughter which were made for the children of his living sons and daughters. By this repeated reference in Article III to "my children named in Article II" where he had recognized the right of the Beard children to take their dead mother's share, the testator showed he had in mind his dead daughter's children when disposing of the realty and its income. Certainly this reference is as strong as the phrase in the Peak case where the will stated "my children herein named."
Add to this reference of the "children named in Article II" the further provision in Article III for a trust of the Beard children's shares, and the conclusion is irresistible that *Page 489 the testator intended them, as descendants of Florence, to take her share. To hold otherwise would mean this reference to the trust for the Beard children is meaningless. He had already provided in Article II for a trust of their share of the personalty until they became twenty-one. This provision of the will in so far as a trust for the Beard children is concerned would certainly be inoperative or ineffectual unless Article III be construed to pass to the Beard children a share in the realty and its income. This also brings into operation the first part of the common-law rule previously stated where the word "children" will be construed to include grandchildren when otherwise a provision of the will would be inoperative. This is the article of the will where the testator disposes of realty and realty income. In this article he speaks of shares to his children or to their descendants who would be his grandchildren. And he makes specific reference by name to the descendants of a deceased daughter and provides for a discretionary trust for the shares of these named grandchildren. In this discretionary trust provision he brackets the shares of his grandchildren with the shares of his two daughters, Alice and Floy Fintel. I think this clearly shows a purpose and intent to have the Beard children share in the income of the realty and the money realized where the realty is sold ten years after the testator's death.
I agree with the rules of construction stated in the majority opinion to the effect that the entire instrument should be considered and I only wish to add that the law favors a construction of a will as most nearly conforms to the statutory rule of descent and distribution. Fletcher v. Fletcher, 200 Iowa 135, 204 N.W. 410; Marvick v. Donhowe, 191 Iowa 214, 182 N.W. 182.
I think the intent to treat all of his children and all of the descendants of his children, or his grandchildren, with complete equality is perfectly plain from a reading of the entire will. That this construction conforms to the statutory rule of descent is another reason why the will should be so interpreted.
BLISS and GARFIELD, JJ., join in this special concurrence. *Page 490