The Leon reporter. (Leon, Iowa) 1887-1930, 1917-04-19

% 100, tne nOlQer OF cOnulLlOudl
fee may sell and convey such fee
tributes OF ownership subject only,
as we have already said, to the pos
iSibility Of reverter or diversion OF the
title upon failure OF the condition
attached thereto.
We discover nothing in the will Of
DR.. Gardner which seems intended
to vest the son with any other or
greater power or authority than such
as the laws attaches to the ownership
OF conditional or defeasibIe fee.
| There is still another feature Of
this case which is not without ma
terial bearing upon the issue we are
here considering. we refer to the
mother and son placed upon this de-
wise in the contract made between
them after the will had become ef-
fective after the ueath of DR.. Gard
ner. If the appellants contention be
correct the title to all the property
described in the third paragraph Of
the will had then become complete
in the son unincumbered and unre-
stricted by any condition in favor OF
the mother, yet we find them both
here expressly recognizing the con-
ditional character OF the title devised
to the SON. In view of our conclu-
sion of the clear expression Of the
|
us to decide how far, il at all, the
parties to this contract are concluded
by its terms upon the question OF
their respective rights under the
will, yet if the construction OF the
devise were one open to any reason
able doubt the fact that the son, the
one person adversely affected by the
the testator more than two years and
never in his life time, so far as the
record shows, questioned the condi-
tional character OF his title, it is sig.
nificant of the meaning and effect or
the testator's language as it appeals
, to the ordinary mind.
IL. AS an alternative proposition
appellants rely upon the rule by
which the testator has made a clear
devise of fee or absolute title the
estate in such property is tnereby
exhausted and it is not within his
power to control the course or the
descent of the devised property alter
the death of the devisee. While
there has been some division OF
opinion in this court as to the app'l-
cation Of this rule to particular cases
the correctness OF the ABSTRACT legal
proposition is not open to dispute.
Starting from this foundation it is
argued oy counsel that as the DEVISE
in the third clause of the VIII Pc
queath and devise to nv son Charles
Edgar Gardner the homestead prop
erty occupied by him, and again Il
give, devise and beQueath unto my
son one-half in value of all the real
estate and personal property, Ian,
guage which standing alone would
Undoubtedly vest the devisee with
such effect without regard to the
condition contained in the same
paragraph No precedent has been
cited and we think none is to be
found going to this extent. 10 sus,,
p, tain the position taken by counsel
the court must dismember the tesla,
tors statement of his intent ana
give effect to one clause or phrase
thereof and deny any force or effect
to the express qualifications or con-
dition attached to such DEVISE, IL
should be kept in mind that while
testatOr cannot make two lncOnSlSt-
ent or repugnant devises and botn pc
declared legally valid. it is undoupt-
edly within his power to devise
conditional or defeasible fee. In the
case of manifest repugnancy, or in
consistency the court may declare
which if either of such provisions
shall be held valid, but where a de-
wise is made subject to a clearly eX-
+! pressed condition it is not within
! the condition from the gift and de-
clare absolute and unlimited the TUE
which the testator has made limlted
land conditional; Meek VS.. Briggs, 81
Iowa, 6lu; otivers VS.. Gardner, he
Iowa, 3U7: Wilhelm VS.. Calder, lO2
Iowa, a42; Marshfeld VS.: shelton
! It onn.D 80 At 272; ,anady vs..
Esiste Neb o !S% r. w. sg S?' Ty!sT
VS.. Thelig, (Ga.) 81 s. E., sos. 70
read this will as applicants would
have it read and totally disregard the
! conultion attached to the devise
Charles e. Gardner is to destroy and
not to construe. The sole Justllca-
ton and the only purpose or Jual-
velOpment Of the intent OF the tesla.
tor. In so doing every provision OF
, the instrument if lawful in char
acter, is to DH given due effect. Inc
, court may not make a will for the
testatOr nor mnose upon 1t a forced
or unnatural construction to accom-
plish what may seem to be a more
! lust or appropriate distribution of
his estate. The will in this case was
made twenty-five years before the
testator's cath No question can be
raised IS to his testamentary calac-
lily at that t:~-n During the re-
mainder of his nfe he had abundant
opportunity TO reflect upon the DIS
I position he mad made Of his estate
and to determine whether he deSlr-
ed to make any chances therein. No
change was made and the Will speaks
! as from the date Of his death.
Much has been said in argument
of the circumstances surrounding the
testator and of the relations between
himself and wife on the one hand
and the son and son S wife on the
other, but we find nothing therein
which justifies US in giving to the
language of his will any other than
it's plain natural import and mean
ing. and this we think necesSltates
! an atfirmance of the conclusion
reached by the trial court.
| For the reasons stated the JUGS
ment appealed from is tIRMED;
Gaynor, chief justice. Preston and
| Salinger, junior justices, concurrlns.
SlOan's Liniment for rheumatism.
The torture of rheumatism, the
pains and aches that make life un-
I