I am unable to follow the majority opinion and respectfully dissent.
The crux of this case involves the intention of testator, as expressed by the third sentence in Item IV of his will. The testator there says: "And also, to each of said children I bequeath and devise an equal portion of the residue of the property of my estate * * *; subject, however, to the interest of my wife therein and [to] the income therefrom if she survives me, as provided in Item V of this will, and to the custody and control of said property by a trustee during the remainder of her life as provided in said Item." The majority opinion, reading this sentence in connection with Items V and VI, holds that the interest bequeathed to each of the children is a contingent one and affirms the trial court. In my judgment, the interest thus bequeathed is a vested one and I would reverse.
That the words "bequeath and devise" convey a fee simple estate just as effectively as though the words "absolutely", "in fee simple" etc., were used, see In re Estate of Hellman, 221 Iowa 552, 266 N.W. 36. All agree that whatever estate the children take, it is subject to the life interest of the wife, as the same is outlined in Item V. Item V does not, in my judgment, in any manner whatsoever apply to the estate taken but only to the timewhen the estate is taken.
Paragraph one in Item V creates the trust and states its purpose. It definitely limits the trust to "only during the remainder of my wife's life" and then sets forth specific directions governing the trust by the trustee, by the reference to the numbered divisions of said Item.
Division (1) thereof empowers the trustee to sell and make title, if deemed expedient for the trust. This is merely the creation of a life estate with the power of disposal and in no way does it alter or modify the estate granted in Item IV. While *Page 804 strictly speaking it is an estate to the trustee, for the life of another, the wife, the practical result is the same. Paxton v. Paxton, 141 Iowa 96, 119 N.W. 284; Bussing v. Hough, 237 Iowa 194,21 N.W.2d 587.
Division (2) gives directions as to the investment of the corpus of the trust by the trustee.
Division (3) provides the manner in which the income from the trust is to be paid to the life beneficiary.
Division (5) states that while the trust property is held by the trustee the interest or ownership of the children in the property shall not be subject to alienation and forbids the trustee recognizing such. While the right of alienation is one of the attributes of a fee simple title, the attempted restriction thereof does not necessarily mean that the estates of the remaindermen are not vested. We said in Hudnutt v. John Hancock Mut. L. Ins. Co., 224 Iowa 430, 438, 275 N.W. 581, 586: "Even if the testator did have such an intention [intended to prevent alienation], this does not change the fact that it was his intention that his son should become the absolute owner of the property." In other words, if by the prior clause, an absolute estate has been granted a later clause restraining alienation is not to be considered as a modification of the former. In re Estate of Flannery, 221 Iowa 265, 264 N.W. 68; In re Estate of Bigham, 227 Iowa 1023, 290 N.W. 11. On the contrary, so far as such a clause may be deemed to be an indication of the intention of the testator, irrespective of its effect, it clearly shows that the testator recognized a vested, alienable interest to exist in the children.
Division (4) provides that the trust shall terminate upon the death of the wife and directs the trustee to distribute to "my children named in Item IV of this will, giving to each the portion designated in that Item; and should any of them be dead at that time, then to the heirs of such deceased child the share the deceased would receive if living. Such payment or distribution shall be made only to the person to whom it is given by this will, or his or her legal representative." By this provision testator recognizes that, distribution being postponed until the death of the wife, some of the ones authorized to take under Item IV may be dead, and simply directs that the trustee shall pay to such *Page 805 child's legal representative. This provision is, in my judgment, very expressive of testator's intention to grant a fee. If, as the majority opinion holds, only a contingent estate was granted to each child, this provision means nothing for with the death of the child also goes the contingent estate and the legal representative of such child would have no interest therein.
I am unable to find anything in Item V which is at all inconsistent with a vested estate, and especially is this true if we are to recognize our established rule that "the law favors a construction that a remainder is vested, rather than contingent." Lingo v. Smith, 174 Iowa 461, 467, 156 N.W. 402, 404; In re Estate of Phearman, 211 Iowa 1137, 232 N.W. 826, 82 A.L.R. 674.
While by the express provisions of Item IV the remainder interest is limited only by Item V, the well-recognized rule of construction is that: in determining the intention of the testator the instrument should be examined by its four corners. The majority opinion construes Item VI as showing an intention to create a contingent estate only. Item VI provides that should any of the children named in Item IV be dead when if living they would be entitled to receive a portion of the estate, such portion shall become the property of their heirs (children clearly intended) and if no heirs survive them, then to the surviving children. The majority opinion seems to have overlooked the rule announced in Shoberg v. Rock, 230 Iowa 807,298 N.W. 838, to the effect that a devise over, on the contingency of the first taker's death, refers to the death in testator's lifetime unless a contrary intention is found in other provisions of the will. See also Blain v. Dean, 160 Iowa 708, 142 N.W. 418. The majority opinion refers especially to the case of Horner v. Haase, 177 Iowa 115, 158 N.W. 548, as being a similar factual situation. I respectfully submit that this case is not in point as to the facts, and hence the reasoning thereof is not applicable to the instant case.
Accepting the definition of "vested and contingent remainders" as set forth in the majority opinion and also the authorities therein cited on this question, I am satisfied that testator intended to, and did, create a vested estate in each of his children named in Item IV of his will and that the judgment of the trial court is incorrect. I would reverse. *Page 806