#### C. D. Bennett, Administrator, Appellee, v. Mattie M. Primer, Appellee, et al., Appellants.

WILLS: Codicil Working Revocation. Tlie devise of a remainder after 1 the termination of a life estate is not canceled by a codicil which, withdraws the life estate and substitutes a trust estate (1) for the support for life of the former life devisee and (2) for the furnishing of an annuity to the remainderman for the lifetime of said former life devisee. This is true even though the remainderman is, by the codicil, made trustee of said trust estate.

WILLS: Merger of Equitable Into Legal Estate. Principle reaffirmed 2 that, when one has an equitable estate, and later acquires the legal estate, the former will be merged into the latter, when such merger is to the interest of the legal holder.

*Appeal from Keohuh District Court.*— Charles A. Dewey, Judge.

September 28, 1921.

Aotion in equity to construe a will. The trial court construed the will and codicils together, and as claimed by plaintiff and by defendant Mattie M. Primer, giving to her the estate. The other defendants *appeal.*—

Affirmed.

*1234*F. M. Beatty*and *C. G. Hewinger,*for appellants.

*Willcockson, Hamilton & TJpdegraff, Stockman <& Baker,*and *John D. Denison,*for appellees.

PRESTON, J.

' working revoca-tl0n‘ -The property of the deceased is, for tbe most part, real estate, consisting of about 100 acres of land in Keokuk County, Iowa, and a borne place in town. There was a small amount of money, and the executor has collected rents on the property since the death of testator. The testator, Benjamin H. Yeach, died February 13, 1917, without issue. ‘ His will and two codicils were admitted to probate in February, 1917, and plaintiff Bennett was appointed administrator and trustee, in place of Mattie Stanton Primer, who had filed a written refusal to serve, because of her residence in California. Testator left a widow, Henrietta Yeach, who died intestate in November, 1918, without issue. Henrietta was adjudged insane in July, 1913, and committed to the hospital at Mount Pleasant. She was an inmate of the hospital at the time of her husband’s death, and she died while an inmate. After the death of testator, and in April, 1917, the district court elected, for the widow, to take the distributive -share of the estate of testator, in lieu of the provisions of the will and codicils made in her behalf. The defendant Mattie M. Primer, formerly Stanton, was the niece of Henrietta Veach, and for some years lived with testator and his wife. She was past 30 years of age when testator died, and was 32 years of age at the time this action was brought. She was married in October, 1915, and has two children, who are now living. The other defendants are the heirs of testator, some of them brothers, sisters, grandchildren, and so on.

The will, executed in 1901, after providing for payment of debts, etc., provides:

> ‘ ‘ Second. I give and bequeath unto my beloved wife, Henrietta Yeach, all my property, both real and'personal, for the period of her natural life. She to make use of same for her sole use (and the education of Mattie Stanton) so long as she may live. " •

> “And I hereby direct and will that after the death of my said wife Henrietta Yeach, the remainder of said estate both *1235real and personal I give and bequeath to Mattie Stanton in ease she is living at the death of her aunt Henrietta Yeach.

> “What real property is left to Mattie Stanton shall not be sold until she is thirty years old but she shall have full control of it. And in case the said Mattie Stanton should not live and die without heirs, then I direct that the real property be sold and the proceeds added to what personal property there may be. The sum of same to be equally divided among my nieces, including my wife’s nieces by whatever name they may bear.

> “I hereby appoint as executrixes my wife, Henrietta Yeach, and Mattie Stanton. I request that they be not required to give bond as such.” •

The first codicil, executed in 1911, makes but one, change in the original will, and' provides :

> “It is my will that all of the aforesaid will be and remain as therein written, excepting however, that where the word ‘heir’ appears therein that said word be erased therefrom and the word ‘children or issue’ be inserted in its place and stead.”

The second codicil, executed in August, 1914, about a year after his wife had been committed to the asylum (omitting formalities) provides:

> “Under date of September 5, 1901, I made, published and declared my last will and testament, in and by which I did bequeath and devise my property, and now»wishing to change the terms and provisions of said will, I now change the terms and provisions thereof as follows: .

> “I. I hereby cancel the appointment of Henrietta Yeach, as an executrix of my estate, and hereby nominate and appoint Mattie M. Stanton, or her successor to be appointed by the court, as the sole executrix of my last will.

> “II. I give and devise all of my property to Mattie M. Stanton as my executrix, in trust for the purposes and to be disposed of as follows:

> “ (a) So much of the income of my property as is necessary shall be used for the care, comfort, support and maintenance of my beloved wife, Henrietta Yeach, so long as she shall live, and I do so order, will and direct.

> “(b) Out of any remainder of the said income and rentals arising from my property, there shall be paid yearly to said *1236Mattie M. Stanton an amount not exceeding five hundred (500) dollars.

> “(c) In the event that the income of my property shall not be sufficient to provide the needed amount for the care, support and maintenance of my said wife, and the said sum above given to Mattie M. Stanton, then the said Mattie M. Stanton as executrix herein, shall be and is hereby authorized and given full power, at such times and on such terms as she deems best, to sell such part or parts of my real property as shall be deemed by her necessary to provide for the said support of my wife and the said provision made for her, and the additional amounts thus provided' for said purposes.

> “III. The provisions herein made for my wife Henrietta Yeach, shall be in lieu of dower and distributive share in my estate.

> “IV. I hereby request that said Mattie M. Stanton shall not be required to give bond as executrix herein, except that if any of my real estate shall be sold under the provisions óf my will, then the said executrix shall give bond in such amount as the court shall deem right and proper in the premises.

> “V. And lastly it is my desire that this second codicil be annexed to and become a part of my said last will and testament, the same in all respects as though the provisions hereof had been inserted therein in lieu of the original provisions therein specified.”

The facts are not disputed; and the trial court found the facts as before stated, and ruled that the defendants other than Mattie M. Primer had no interest in the property, and judgment was rendered against them for costs. The court found for plaintiff and defendant Mattie, as follows:

> “That, under the terms and provisions of the said last will and testament and the codicils thereto of the said Benjamin IT. Veach, deceased, the said testator devised to the said Mattie M. Primer (neé Stanton), in trust, the income of his property for the care, support, and maintenance of his wife, Henrietta Yeach, and the payment to the said Mattie M. Primer of the sum of five hundred dollars ($500) annually during the life of Henrietta Yeach, and so much, of the corpus of his estate, after using the said income for such purpose, as should be needed to pro--*1237vide for said care for his said wife and the payment of said annuity to the said Mattie M. Primer, said trust to terminate at the death of said Henrietta Veach; that, subject to the said trust, the said will devises all of testator’s estate to said Mattie M. Primer; and that, upon the death of said testator, the said Mattie M. Primer becomes vested with a fee-simple title in and to all of the estate of said testator. ’ ’

By appropriate order and decree the court directed the administrator to proceed in the settlement of the estate, and in accordance with the decree. The appellate record reveals the fact that, owing to the election of the widow, throug’h the court, to take her distributive share, this controversy involves only two thirds of the estate.

Appellants’ contentions, summarized, and stated as briefly as may be, are that the court erred in failing to find that testator’s intention as to his entire estate was expressed in the second codicil, the claim being that, because the disposition of the property there made was inconsistent with the provisions of the original will, said codicil superseded and revoked entirely the original will, and that the first codicil may be disregarded, and that the last codicil alone constitutes the last will of testator; that, under the last codicil, the property should go to testator’s heirs, according to the rules of descent; that, upon the termination of the trust, the entire estate, under a proper construction of the codicil, should go to the defendants, heirs of the testator. There is also some suggestion that, under the provisions of the codicil, a contingent remainder is devised, or the limitation by way of remainder after the gift of the life estate.

1. The principal argument is based upon the proposition that the last codicil entirely revokes and supersedes the original will. It is doubtless true, as contended by appellants, that, where there is a conflict between the terms of the will and a codicil, the codicil, being the last expression, will govern; but it does not follow that the original will is necessarily revoked. Manifestly, testator desired and intended to make some changes by the codicil. That was the very ptmpose of it. It is probable that one of the reasons for making some change was because of the changed conditions in regard to his wife, Henrietta. It is thought by appellants that a subsequent will or codicil, disposing *1238of the entire estate in a different manner, revokes the former will. The argument proceeds upon the assumption that the entire estate is disposed of by the codicil, and in a different manner; but it will be observed that the original will gives a life estate to the widow, and the only provision anywhere disposing of the remainder is found in the original will. The last codicil establishes a trust, for a time and for certain purposes, the income to be used to care for his wife, and a certain amount to Mattie Stanton. This was the purpose and scope of the codicil. Furthermore, both codicils refer to the will, and the expressions therein fairly show, we think, that it was not testator’s intention to revoke the original will, and the legal effect of the codicils is not to revoke it. The first codicil makes no change, except to change the word “heir” to “children or issue.” The last codicil refers to the original will, and states that he desires to change the terms and provisions thereof ;■ that the said codicil is to be annexed to and become a part of his said will, and so on. A codicil does not necessarily’revoke the provisions of the will of which it becomes a part. Ordinarily, it republishes and reaffirms, and is to be construed with it as one entire instrument, and does not revoke, unless by some plain direction or by force of the clear import of language in some inconsistent or repugnant provision. In order that a codicil shall operate as a revocation of any part of a will, in the absence of express words to that effect, its provisions must be so inconsistent with those of the will as to exclude any other legitimate inference than that of a change in the testator’s intention: It is fundamental that a will and codicil should be construed together; and, unless there is an irreconcilable conflict or discrepancy between them, the codicil is no more the last expression of testator’s intent than if it had been written as a part of the original instrument. Numerous authorities are cited on these several propositions and others; but it is clear to us that appellants’ contention as to the revocation cannot be sustained, and we shall not prolong the discussion in reference thereto.

2. A brief analysis of the original will shows that it provided as follows: For payment of debts; for a life estate to Hemúetta and for her use; for the education of Mattie Stanton, as long as Henrietta should live; at death of Henrietta, remain*1239der to Mattie Stanton, if Mattie should be alive at Henrietta’s death, otherwise to Mattie’s heirs; but if Mattie is alive when Henrietta dies, then Mattie to have the remainder of the -estate and control of it, but not to sell it until she is 30 years old; should Mattie die before Henrietta, without heirs, the remainder left at Henrietta’s death to be divided among the nieces of Benjamin and Henrietta. It appoints both Henrietta and Mattie executors. The . first codicil changes the word “heir,” as before stated. The second codicil leaves the provisions as to payment of debts as in the original will, and make the following changes: Appoints Mattie sole executrix; gives all the property to Mattie as sole executrix in trust for the purpose of supporting Henrietta during her life, from the income; gives Mattie $500 annually out of the balance of the income, and rentals, if sufficient, and if not, allows Mattie to sell so much as may be necessary; contains the expressed intention that it shall become a part of the original will, etc. Construing the three instruments together as one, there is given to Mattie, executrix, as trustee, a particular estate for the life of Henrietta, with power of alienation, if necessary, and the trust estate is seized to the use of Henrietta and Mattie, for support of Henrietta and the annual payment to Mattie during the life of Henrietta. If Mattie should predecease Henrietta, without children or issue, the property was to be sold and divided among the nieces of testator and his wife at the wife’s death. If Mattie should predecease Henrietta, leaving children or issue, the estate and remainder vested in Mattie should go to her children or issue at Henrietta’s death. If Mattie, with or without issue, should outlive Henrietta, she would take the estate and remainder, limited as to the sale until she should reach the age of 30 years. The conditions in regard to children or issue of Mattie, and as to her age, are out of the ease, and need not be considered; since she has children, and she is past 30, and such conditions existed at the time of testator’s death.

2‘ of1IeauitaWerfifto legai estate. Plaintiff Bennett, as trustee, took the particular estate for the life of Henrietta, charged with the benefits to her and Mattie, and with power, for the life of Henrietta; but the court, for Henrietta, elected to take her distributive share in the estate, in lieu of the provi-*1240sious made for her in the will. So that, at Henrietta’s death, intestate, without issue, Mattie’s estate in remainder merged with her beneficial interest in the trust estate, thus giving her the fee. Because of the election for the widow, her death, and the other conditions existing at the death of testator, before stated, there was an acceleration and merger. The trustee holds the legal title merely to perform the duties imposed by the trust, and is not the holder of a beneficial interest. 21 Corpus Juris 1037, 1038, states the rule thus:

> “It is generally held, although there is authority to the contrary, that, whenever the legal and equitable estates in the same land become united in the same person, the equitable is merged in the legal estate, unless it is the intention of the party in whom they unite, ox manifestly to his interest, or essential to the ends of justice, or necessary to protect the rights of an innocent third party, or necessary to carry out the purposes and intentions of the donors, that the estates should be kept separate. ’ ’

None of these exceptions obtain in the instant case. It was to Mattie’s interest that the estates should merge. *Sherlock v. Thompson,*167 Iowa 1; 3 Corpus Juris 208; *Ellsworth College v. Emmet County,*156 Iowa 52, 60. See, also, as having a bearing, *Lingo v. Smith,*174 Iowa 461, 468.

We shall not again review these and the other cases. We are of opinion that the trial court rightly construed the will, and the decree *is*— Affirmed.

Evans, C. J., Weaver and De Graee, JJ., concur.