I am constrained to disagree with the majority view and to sustain the finding of the district court. Paragraphs 4, 5, and 6 of the will are as follows:
"Fourth: I give, devise and bequeath the rest and remainder of my property to J.D. Whisenand as trustee for the use and benefit of my daughter Stella during her natural life, my said trustee is hereby directed to use the income of said property and as much of the principal as may be necessary for her comfort and so much as she may wish to contribute to her Church or Charity after having received the approval of said Trustee.
"Five: I give, devise and bequeath all property remaining at my daughter's death to the children living of my brother and sisters living or dead, share and share alike.
"Sixth: I empower my said executor or trustee to sell all property real or personal, using his best judgment and convey the same without the order of approval of court."
The controversy turns upon the proper construction to be put upon paragraph 5. The majority opinion very properly states that the problem presented is to ascertain from the language of this paragraph the real intent of the testator. The conclusion of the majority is that the intent of the testator was to *Page 11 make a present gift to the living children of the brothers and sisters of testator: that is to say to the children living at the time of the death of the testator and not to those living at the time of the death of the daughter Stella. The argument in support of this conclusion is made to turn upon the rules of evidence relating to vested and contingent remainders as known in real estate law. My first observation is that the subject matter of this case does not classify either as a vested or a contingent remainder within the ordinary meaning of those terms. Ordinarily the contingencies of a contingent remainder relate to the identity of the beneficiary. In the present case the contingency relates not simply to the beneficiary but to the very existence of the property itself. Ordinarily also a remainder vesting inpraesenti operates upon property presently existing and capable of certain identification as such. No property interest of that kind is involved herein. By paragraph 6, of the will, there was an equitable conversion of all real property into personalty. It was all conveyed to the trustee and subjected in his hands to the support of the daughter Stella and to the full extent of the fund, both principal and income. Paragraph 5 has reference to a hypothetical residue, which may or may not exist. If the majority opinion is correct in classifying this possible residue as a remainder within the meaning of real estate law, either vested or contingent, then I agree that under the canons of construction in such cases the term "children living" is deemed (rather arbitrarily) to mean children living at the death of thetestator. This canon of construction arises largely out of the partiality of the law for the vesting of estates in remainder and for the tranquility of real estate titles. If therefore, we may properly say that this is not a case of distinction as between vested and contingent remainders, then we are called upon to take the will by its four corners without other preference or concern than to arrive at the real intent of the testator. To speak negatively the testator could hardly have intended to make a present gift of a residue that existed only as a possibility. The entire estate was conveyed to the trustee. The daughter was the sole beneficiary of the trust. There was no property in existence during the life of Stella to which the nephews could attach a present claim. Complete expenditure for the benefit of Stella would violate no right of theirs. Their prospective benefits were *Page 12 confined to the mere contingency of a future remnant. This was to go to the "living children." The language of the will associates this final gift with the death of Stella and the then existing remnant. It does not associate the gift with the circumstances attending the death of the testator. Taking this gift of the residue in its context, it connects itself so naturally with the death of Stella and the residue resulting therefrom, as to indicate that the gift was to take effect at that time and not before. I can not avoid the conclusion that such was the real intent of the testator.
The conclusion of the majority appears to have been largely induced from a consideration of the case of Dickerson, 200 Iowa 115. I think that that case has no proper bearing upon the decisive question herein. That was a typical case of remainder vested in real estate. The will gave a life estate to the wife and a remainder in fee to the son, subject however to a trust for a period of six years in favor of the son. A vested remainder to the son was created in terms. We held that the creation of the trust did not prevent a vesting of the remainder. In any event the son had a present vested interest in that particular real estate. I think the case should have no controlling influence upon the result herein.
I would affirm the order of the district court.
STEVENS and MORLING, JJ., join in this Dissent.