" And we have said: "In our opinion, there is no reason for extending this rule of law beyond its original application to devises that were of property exactly identical with the property the heir or spouse would have received by the laws of descent or the laws of distribution." Wehrman v. Farmers Merchants Sav. Bk., 221 Iowa 249, 254, 259 N.W. 564, 567, 266 N.W. 290. It is perhaps significant that the expression "worthier title" is found in neither Bouvier's (1934) nor Black's (1933) law dictionaries nor in Words and Phrases (Permanent Edition, 1940) except in the later Cumulative Pocket Part.

"Where a party claims as heir, he must first establish, affirmatively, his relationship with the deceased; and secondly, negatively, that no other descendant exists to impede the descent to the plaintiff." This has been the rule in Iowa; and in the recent case of Wehrman v. Farmers Merchants Savings Bank, et al. (decided in 1936), 221 Iowa 249, 259 N.W. 564, the rule was adhered to. This was a contest between collateral heirs and the surviving husband of the deceased and father of her twin children, the mother and the two children dying at the time of their birth and assertedly at the same time. Several questions arose in the case and especially as to whether or not the evidence showed survivorship of one or both of the children, and necessarily the question of burden of proof. After an extended review of the facts, the opinion, written by Justice Richards, 221 Iowa 249, 260, 259 N.W. 564, 570, 266 N.W. 290, goes on to say:

15 Am.Jur., Damages, Sec. 82, p. 490. The case of Wehrman v. Farmers' Merchants' Sav. Bank of Durant, 1935, 221 Iowa 249, 259 N.W. 564, 266 N.W. 290, involved the Iowa anti-lapse statute. In that case the decedent's daughter died during a Caesarean operation in which twins were removed.

This court has not been prone to enlarge the application of the worthier title doctrine by construction. See Wehrman v. Farmers' Merchants' Savings Bank, 221 Iowa 249, 259 N.W. 564 (1935). In any event, we deem this case an appropriate one in which to end in Iowa what is left of the wills branch of the worthier title doctrine (in addition to the antilapse portion previously terminated), for the underlying reasons articulated in the case of In re Estate of Kern, 274 N.W.2d 325 (Iowa 1979), and in Note, Comment, The Iowa Doctrine of Worthier Title — Why Perpetuate the Testamentary branch? 66 Iowa L.Rev. 439 (1981).

Conscious of this effect, this court has drawn minute distinctions to remove cases from the operation of the doctrine. The principal cases involving the doctrine in the antilapse statute setting are Tennant v. Smith, 173 Iowa 264, 155 N.W. 267 (inter-spousal devise; doctrine applied); Herring v. Herring, 187 Iowa 593, 174 N.W. 364 (similar); In re Will of Watenpaugh, 192 Iowa 1178, 186 N.W. 198 (devise and inheritance found not identical; doctrine not applied); In re Estate of Davis, 204 Iowa 1231, 213 N.W. 395 (same); In re Estate of Warren, 211 Iowa 940, 234 N.W. 835 (facts similar to present case; doctrine applied); Wehrman v. Farmers' Merchants' Savings Bank, 221 Iowa 249, 259 N.W. 564 (will and inheritance not identical, daughter to receive $50 for care of cemetery lot in addition to regular share; doctrine not applied); In re Estate of Schroeder, 228 Iowa 1198, 293 N.W. 492 (devise and descent not identical; doctrine not applied); In re Estate of Everett, 238 Iowa 564, 28 N.W.2d 21 (same); Beem v. Beem, 241 Iowa 247, 41 N.W.2d 107 (will gave devisees exactly what they would have received under statute but verbiage of will and statute not same; doctrine not applied); In re Estate of Coleman, 242 Iowa 1096, 49 N.W.2d 517 (devise and descent not identical; doctrine inapplicable); and In re Estate of Miller, 243 Iowa 920, 54 N.W.2d 433 (doctrine applied on facts similar to Beem case). IV.

Although not directly in point our conclusion finds some support in the holding a murder charge under our statutes will not lie unless there is a live birth of the alleged victim. The State v. Winthrop, 43 Iowa 519. And Wehrman v. Farmers Merch. Sav. Bank, 221 Iowa 249, 259 N.W. 564, a real estate partition action, where we held in order to inherit an interest in real estate the child must be born alive. We express no opinion as to the existence of the fetus as a person in either the philosophical or actual sense.

Under section 144.48 the birth certificate created a presumption that unless overcome would defeat plaintiff's claim. In Wehrman v. Farmers Merchants Savings Bank, 221 Iowa 249, 262, 259 N.W. 564, we held that the statutory presumption "is only of such probative value as it has in connection with the entire record in this case." In Beardsley v. Ostrander, 254 Iowa 356, 360, 118 N.W.2d 61, we said: "The statements contained in the certificate are only presumptive evidence.

32 if Mr. Coleman had died intestate. The cases last-cited are therefore not applicable. See In re Estate of Everett, supra, 238 Iowa 564, 567, 568, 28 N.W.2d 21, 23; In re Estate of Sheeler, 226 Iowa 650, 663, 284 N.W. 799; Wehrman v. Farmers Merchants Sav. Bk., 221 Iowa 249, 254, 259 N.W. 564, 266 N.W. 290; In re Estate of Davis, 204 Iowa 1231, 213 N.W. 395. See also Beem v. Beem, 241 Iowa 247, 41 N.W.2d 107.

"We have said the fact that the will makes the identical provision for the spouse or heir the law makes in event of intestacy is deemed sufficient evidence of the testator's intent that the devise should lapse if the beneficiary predecease him. [Citing the Tennant, Herring, and Warren cases, all supra.] * * * The rule of such decisions does not apply unless the provision of the will is identical in quantity and quality with the statutory provision to the same end." Citing In re Will of Watenpaugh, In re Estate of Davis, both supra; Wehrman v. Farmers Merchants Sav. Bk., 221 Iowa 249, 254, 259 N.W. 564; In re Estate of Sheeler, 226 Iowa 650, 663, 284 N.W. 799. [2] Under the decisions of this court the devises in controversy in the Tennant and Herring cases were ineffective and of no validity.

The rule of such decisions does not apply unless the provision of the will is identical in quantity and quality with the statutory provision to the same end. In re Will of Watenpaugh, 192 Iowa 1178, 186 N.W. 198; In re Estate of Davis, 204 Iowa 1231, 213 N.W. 395; Wehrman v. Farmers Merch. Sav. Bk., 221 Iowa 249, 254, 259 N.W. 564; In re Estate of Sheeler, 226 Iowa 650, 663, 284 N.W. 799. It appears here the $3,000 bequeathed to the husband is much less in value than his distributive share under the law, had he survived her. It further appears testatrix owned real estate when she died. There is not, therefore, identity of either quantity or quality.