(dissenting).
I agree with the decision of the court of appeals except on one issue, and I dissent from the decision of the majority of this court. The appeal presents three principal issues: What interest did Robert take under Hans’ will? Did Robert exercise his power of appointment? Who takes the trust property on Robert’s failure to appoint?
I. What interest did Robert take? Paragraph 4 begins, “Subject to the foregoing [other gifts], I give the remainder of my property to my children except as hereafter stated, share and share alike, as their property absolutely and by right of representation....” The majority holds that Robert took a remainder in fee as to his share, and points to the language in paragraph 4 that Hans’ children take the property “share and share alike, as their property absolutely and by right of representation....”
If the will consisted only of that last quoted language I would agree with the majority. We must, however, consider all parts of a will and try to give effect to them all. In re Lamp’s Estate, 172 N.W.2d 254, 257 (Iowa 1969). Just before the last quoted language, Hans states that he gives the remainder of his property to his children “except as hereafter stated,” share and share alike, etc. Continuing in the same sentence, Hans then creates three exceptions. First he gives his widow dower instead of a life estate should she remarry. Had she remarried the children’s shares would thus have been cut down. Next he reduces the gift to Minnie from a child’s share to $500. This increased the shares of the other children. Finally, he gives Robert’s share in trust “as hereinafter provided.” We must thus look “hereinafter” to ascertain what Robert takes.
Proceeding to paragraph 5, Hans establishes a spendthrift trust for Robert. The net income is to go to Robert for life “and on his death the principal of said fund shall be paid as he may direct by Will or upon his failing to direct or appoint, in equal portions to his wife and children, share and share alike.” The trustee may, if in his judgment Robert can manage his affairs, pay some or all of the trust principal to him.
This language seems straightforward: Robert has a life income from the trust (plus authority in the trustee to pay more), and he has a power to appoint the remainder.
The majority’s holding that Robert owns the remainder in fee raises perplexing questions. If Robert owns the remainder in fee, he could devise the remainder without having the power Hans gave him. Why then would Hans give him the power of appointment? Was that an idle act? Again, Hans included a devise of the trust property in the event Robert did not exercise his power. Why would Hans cover the contingency of failure to exercise the power if Robert received a fee? In addition, the devisees Hans names in default of appointment are not necessarily the same as the heirs Robert would have had if he had died intestate owning the remainder in fee; they are Robert’s wife and children share and share alike. If Robert had died intestate leaving a wife and children, would they have taken from Hans in equal shares as paragraph 5 directs in default of appointment, or from Robert in the proportions directed by the intestacy laws because Robert owned the remainder in feé as the majority holds?
Concluding that paragraph 4 gave Robert a remainder in fee, the majority further holds that the gift could not be destroyed by paragraph 5, citing Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735 (1939) (repugnancy doctrine). My response to this is twofold. First, paragraphs 4 and 5 are not repugnant for the reason that paragraph 4 contains express qualifications: “except as hereafter stated” and “as hereinafter provided.” My other response is that the repugnancy rule of Blackford and earlier cases has been substantially liberalized by two later decisions, perhaps as a result of Justice Thompson’s remark in his special concurrence in Schmidt v. Claus, *336250 Iowa 314, 318, 93 N.W.2d 592, 595 (1958):
However, it seems proper to comment that the rule against repugnancy which we have adopted, and have applied here, is highly technical and generally has the effect, as in the instant case, of reaching a result which the testator did not intend and which is contrary to the express intent of the will if it is construed in accordance with its plain language.
The two later decisions to which I have adverted are In re Estate of Roberts, 171 N.W.2d 269 (Iowa 1969), and In re Estate of Hansen, 264 N.W.2d 746 (Iowa 1978). In Roberts this court reversed a finding of repugnancy and stated inter alia:
Certainly the form of the will has no bearing on the intentions of the maker, and we have often held that the arrangement of the will or the order in which its clauses or paragraphs appear is not controlling and may be of little significance since the will must be read and construed as a whole.
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[I]n Iowa City State Bank v. Pritchard, 199 Iowa 676, 678, 202 N.W. 512, 513, it is said: “It is well settled that a testator cannot make an absolute devise of property in fee, and in a subsequent clause of his will defeat or destroy his gift or limit the enjoyment of the thing given.” This view was specifically reaffirmed in Schmidt v. Claus, 250 Iowa 314, 317, 93 N.W.2d 592, 594. We find no fault with this rule of law and recognize that, whether it be called a repug-nancy or an inconsistency, any attempt in a later paragraph of a will which of necessity will defeat, destroy or limit a specific bequest previously given is contrary to law and should be held void. It is obvious, however, where testator’s intention is perfectly clear, the courts do extend every effort to find no inconsistencies and, where possible, they attempt to resolve conflicts that would tend to thwart the apparent will of the testator. In re Estate of Fleck, Iowa, 154 N.W.2d 865, 867, 868, and citations.
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Regardless of some past pronouncements, we now prefer the rule that only where subsequent provisions of a testator’s will are clearly in conflict with specific gift provisions and both cannot stand, can the clear and obvious intent of the testator be disturbed and the subsequent provisions be declared ineffective.
Roberts, 171 N.W.2d at 272, 273.
In Hansen we affirmed a rejection of repugnancy and relied on Roberts. Referring to Schmidt, in which Justice Thompson made his comment, we stated:
Whether we would today reach the result in Schmidt is doubtful, in view of the intervention of the Roberts' rule requiring all clauses of a will to be given effect if reasonably possible.
Hansen, 264 N.W.2d at 749. The current trend is thus away from the strictures of the old repugnancy rule.
For these reasons I agree with the court of appeals that paragraphs 4 and 5 of Hans’ will can both stand and that Robert took a life income from the trust, the trustee had power to transfer to him all or part of the trust fund (but did not do so), and Robert had power to appoint the remainder in the fund.
Had Hans given Robert the remainder in fee, he would have enabled Robert to dispose of it inter vivos, contrary to the object of protecting Robert from his own improvidence. Hans prevented that from happening by giving Robert a power exercisable by will rather than the fee disposable inter vivos.
Hans’ gift to Robert of a power, rather than a fee, was thus an integral part of his plan to keep the ownership of the property out of Robert’s hands — subject only to the authority of the trustee to transfer any portion of the property to Robert “when in the best judgment of the trustee the said Robert Johnson is able and capable of managing his affairs..."
II. Did Robert’s will appoint the remainder which followed Robert’s interest of a *337life income? After directing payment of debts, Robert’s will states:
I give, devise and bequeath unto my brother, Dennis Elmer Johnson, all of the property, whether real, personal or mixed, or whatsoever character and wheresoever situate, of which I may die seized or possessed, in fee simple and with absolute power of disposition.
Robert’s assets when he died were $7,911.57 of life insurance and $34.92 in a bank account.
An essential element of the exercise of a power is that the donee intend to exercise it. Restatement (Second) of Property § 17.1 (1986). An inquiry in a given case is thus whether the record shows the donee intended to exercise the power. This court stated in the case of In re Proestler’s Will, 232 Iowa 640, 646, 5 N.W.2d 922, 925 (1942):
Where a power of appointment is vested in one who has become deceased, it is usually held that the will of the decedent will constitute an exercise of the power in three classes of cases, to wit: (1) Where there is a reference to the power in the will; (2) where there is a reference to the property which is the subject on which it is to be executed; and (3) where the provisions of the will would otherwise be ineffectual. In the absence of any of these three requirements, it is usually held that the power of appointment does not constitute a part of the estate and therefore a general devise of “all the rest, residue and remainder” of the estate does not constitute an exercise of the power of appointment.
See also 62 Am.Jur.2d Powers § 49, at 147 (1972); 72 C.J.S. Powers § 40b, at 449 (1951).
Robert’s will does not refer (1) to Robert’s power under Hans’ will or (2) to the trust fund established by Hans. The question therefore is whether, without the exercise of the power, (3) “the provisions of [Robert’s] will would otherwise be ineffectual.” The American Law Institute enlarges on this third indication of intent to exercise a power, in section 17.5 of the Restatement (Second) of Property: “The most common situation involving the rule of this section is where the dispositions under the donee’s deed or will appear to be excessive if only the donee’s owned property is considered but become understandable when the appointive assets are included.” Id., Comment b. Illustration 1 to this section applies the third indicator: A husband transfers $500,000 to a trustee to pay the income to the husband’s wife for life, with a general power in the wife to appoint the remainder. The wife knew that she had assets of her own amounting to $80,000 and that she had the power of appointment over $500,000. In her will she made pecuniary gifts of $375,000 with the residue in trust for two sisters. The wife “has manifested an intent to exercise her general power to appoint by will.” Id.
We have no comparable situation here. In his will Robert simply left all of his property to Dennis. This gift falls under the rule that “a general devise of ‘all the rest residue and remainder’ of the estate does not constitute an exercise of the power of appointment.” Proestler’s Will, at 645, 5 N.W.2d at 925. I thus agree with the court of appeals that Robert did not exercise the power.
III. To whom then does the trust fund go? Robert died without exercising the power and without having a wife or children. The court of appeals held that the fund goes as intestate property to Hans’ heirs. I think it passed under paragraph 4 of Hans’ will to Hans’ children other than Minnie and Robert.
The general rule in the case of default in the exercise of a general power of appointment by will is that the property passes to the donor’s (Hans’) estate. It then passes from that estate, either as intestate property or under the donor’s will if the will contains a clause which will carry the gift. Restatement, supra, § 24.1; 62 Am.Jur.2d Powers § 98, at 197 (1972) (“Ordinarily, where a power is unexercised ... the property subject thereto goes according to the disposition of the donor.”); see 72 C.J.S. Powers § 55, at 465 (1951) (“The failure to *338exercise a power ordinarily does not vest any estate in the donee or those entitled by descent from him.”). If the donor’s will contains a residuary gift, the property may pass under that clause. Sigmon v. Moore’s Administrator, 297 Ky. 525, 180 S.W.2d 420 (1944).
A presumption exists against partial intestacy. 80 Am.Jur.2d Wills § 1175, at 287-88 (1975) (“Indeed, there is a strong presumption against intestacy as to any of the testator’s property.”); 95 C.J.S. Wills § 615a, at 828 (1957) (“a testator is presumed to have intended to dispose of his entire estate and to avoid intestacy in whole or in part”). Partial intestacy is avoidable here.
The initial paragraphs of Hans’ will directed payment of debts, gave the widow a life estate, and made Carol Jean a monetary gift. Those clauses were carried out. Hans then gave the remainder of his property “except as hereafter stated” to his children absolutely. As “hereafter stated” in the will, one of the children, Minnie, did not take a regular child’s share; she took $500 instead. She must therefore now be disregarded. Another of the children, Robert, did not take a regular child’s share; he took instead a life income and power of appointment. He too must therefore now be disregarded. This leaves Hans’ six other children to receive the trust fund, absolutely and in equal shares under paragraph 4 of the will. I would so hold.
REYNOLDSON, C.J., and LARSON, J., join this dissent.