In Pfeffer v. Finn, 239 Iowa 24, 28, 30 N.W.2d 481, 483, the court said: "Generally speaking, a testator may devise property subject to such conditions as he may determine, if not in violation of law." The appellee has cited Collins v. Collins, 116 Iowa 703, 88 N.W. 1097, Tarbell v. Smith, supra, 125 Iowa 388, Blain v. Dean, 160 Iowa 708, 142 N.W. 418, Moore v. Dick, 208 Iowa 693, 225 N.W. 845, Caslavka v. Caslavka, 194 Iowa 52, 188 N.W. 4, and Shoberg v. Rock, 230 Iowa 807, 298 N.W. 838, in support of his contention that his death without heirs would have to happen in the lifetime of the testator in order for the devise to pass to other devisees named in the will. The cases do so state, and as said in Tarbell v. Smith, 125 Iowa 388, at 389, 101 N.W. 118, 119: "This rule of construction is adopted in order to avoid repugnancy, and because the law favors the vesting of estates at the earliest possible period in the absence of a clear manifestation of the intention of the testator to the contrary."
It will thus be seen that the cited case does not bear out the contention of plaintiffs. Neither do the cases of De Cook v. Johnson, 226 Iowa 246, 284 N.W. 118, Long v. Northup, 225 Iowa 132, 279 N.W. 104, 116 A.L.R. 1475, nor Shoberg v. Rock, 230 Iowa 807, 298 N.W. 838, support their claim. In the Shoberg case the second clause, after the payment of expenses, devised certain real estate, and the third clause provided that certain livestock be sold and the proceeds divided between a brother and sisters.
Another principle is that the time of death required to meet a condition to a bequest of another beneficiary's death is normally construed as being prior to the testator's death. See, e.g., Shoberg v. Rock, 230 Iowa 807, 810, 298 N.W. 838, 839 (1941). This may be explained by a preference for interpreting the survivorship clause as a direction for substitution to prevent lapse rather than as a condition.
And no circumstance is shown in evidence that he meant that the death of any of his sons without issue referred to a time after his death. This being the situation, it would appear that the rule of construction stated in the Shoberg case (Shoberg v. Rock, 230 Iowa 807, 810, 298 N.W. 838, 839) would control, and that the provision in the Overturff will relative to the death of any of the sons without issue referred to death without issue before the death of the testator."
Among other decisions of this court are Moran v. Moran, 104 Iowa 216, 218-222, 73 N.W. 617, 39 L.R.A. 204, 65 Am. St. Rep. 443, and In re Estate of Coleman, supra, 242 Iowa 1096, 1102, 49 N.W.2d 517, 520. See also Shoberg v. Rock, 230 Iowa 807, 811, 298 N.W. 838. [7] We hold the will gives the widow the same portion of testator's estate as though he had died intestate.
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.
See cases cited therein. Anderson v. Anderson, 227 Iowa 25, 286 N.W. 446; Culver v. Hess, 234 Iowa 877, 14 N.W.2d 692; Shoberg v. Rock, 230 Iowa 807, 298 N.W. 838. In the case of Anderson v. Anderson, supra, Justice Hale stated clearly and distinctly the rules which have been laid down and followed by this court in the construction of wills.