166 Iowa 663 | Iowa | 1914
The decision of this case depends upon the proper construction of the will of Alexander H. Buchanan, deceased. The testator left surviving him his wife, Isabella Buchanan, and two daughters, Estella Y. Hunter, of adult years, and Sylvera E. Buchanan, five years of age, his only heirs at law. By the terms of his will he gave to his wife the family homestead and one-third of the remainder of his estate in lieu of her statutory share. After thus providing for his wife and for the payment of his debts, the testator made provision for his children in terms as follows:
Item 4. I have at various times advanced to my daughter, Estella Y. Hunter, now residing at Wichita, in the state of Kansas, sundry items of real estate and personal property of various kinds, which I estimate to be of the aggregate value of forty thousand dollars ($40,000.00). For the purpose of making my minor daughter, Sylvera E. Buchanan, to whom I have advanced nothing, share equally with said Estella V. Hunter in my property and estate, I give and bequeath unto my said daughter, Sylvera E. Buchanan, the sum of forty thousand dollars ($40,000.00), to be paid to her when she shall have become of full age.
Item 5. All the residue and remainder of my property and estate, including all property, both real and personal, of which I may die seised or possessed or to v$iich I may be entitled at the time of my death, excepting the property devised or bequeathed in the preceding items hereof, I give, devise and bequeath unto my said daughter, viz.-. Estella Y. Hunter, of Wichita, Kansas, and Sylvera E. Buchanan, now residing with me at Baxter, Iowa, in equal shares, each to have the one-half thereof, absolutely.
Item 6. In the event of my death during the minority of my daughter, Sylvera E. Buchanan, I. direct that a guardian of her property and estate be appointed by the court having jurisdiction thereof, which guardian shall care for and preserve her property during her minority.
*666 Item 7. I nominate and appoint my said wife, Isabella Buchanan, sole executrix of this my last will and testament, and I direct that she shall not be required to execute any bond as such executrix, and that she shall have full power to employ such assistance as she may deem necessary, all costs and expenses thereof to be paid by her from the general assets of my estate, before making any division thereof. She shall have full power, under the direction of the proper court, to pay said bequest of forty thousand dollars ($40,000.00) herein made to my daughter, Sylvera E. Buchanan, either by the assignment of securities which I may have on'hand or in cash from the proceeds of property real or personal to be sold by her.
The will was duly admitted to probate, and at the end of the one-year period for the settlement of the estate the widow, as executrix, presented to the court her final report. This report showed moneys and credits to be accounted for to the aggregate of $74,010.22, which sum includes income derived from the estate during the period of administration. Against this sum the executrix claimed credit for disbursements and compensation to the amount of $3,377, leaving for distribution under the will the sum of $70,633.22. It may also be said that the widow elected to take under the will, and that the real estate, other than the homestead, was sold in proceedings for partition for the sum of $51,830; but so far as appears no part of this latter sum is chargeable to the executrix, its distribution presumably being provided for by the decree entered in those proceedings. The final report having disclosed the amount alleged to have come into the hands of the executrix for distribution, she asked an order authorizing her to distribute the same in accordance with her version of the will — one-third in value to herself, $40,000 in moneys and credits to James M. Donaldson, as guardian of her minor daughter, Sylvera E. Buchanan, and a division of the remaining sum in equal shares between the said guardian and Estella Y. Hunter. Objections to the report were filed by Mrs. Hunter on the general ground that “the petition for distribution and discharge and said proposed plan of distribution do
6. That said executrix shall retain said legacy of $40,000 made by said testator, Alexander H. Buchanan, deceased, in his said last will and testament, to the said Sylvera E. Buchanan, minor, as a part of said estate to be paid to the said Sylvera E. Buchanan, when she shall have arrived at the age of 18 years, without accumulations, except such as she shall be entitled to as residuary legatee.
From this order forbidding payment of the legacy to the guardian, and requiring the executrix to withhold payment thereof until the minor arrived at her majority, and then to account for the accumulations upon the sum so retained as an item of the residuary estate to be shared equally by the two daughters of the testator, the executrix and the guardian have appealed. Estella Y. Hunter also appeals from so much of said order as approves any part of the report of the executrix. In this opinion we shall speak of the executrix and the guardian as the appellants, and of Mrs. Hunter as appellee. “
I. The chief controversy in the case is upon the question whether the legacy of $40,000 to the minor daughter may properly be paid over to the guardian, thus giving her the
We come, then, to the ultimate question whether the will in this particular ease, construed as a whole, discloses an intention which brings it within any of the recognized exceptions of the rule on which the appellee relies. The circumstances upon which appellants rely to take this case out of that rule may be stated as follows: First, that the dominant intent of the testator after providing for his widow is clearly to make an equal division of his estate between his two daughters, while the construction placed upon the will by the trial court serves to defeat that intent to the advantage of the appellee; second, that the relation of the testator, as father of the legatee, a child of tender years, raises a pre
It is well at the outset of this discussion to suggest that eases treating the question of “interest” upon deferred legacies, many of which have been cited in the briefs on either
Bearing in mind this manifest distinction, let us then turn to the will and ascertain therefrom, if we may, the evident intent or purpose of the testator. If anything is
I give and bequeath to my daughter, Sylvera E. Buchanan, the sum of $40,000, to be paid to her when she shall become of full age.
It is subject to no condition or contingency. The right thereto was vested at once upon the will becoming effective, though the right to personal possession and control of the fund was suspended for a definite period. In the same connection, and as a part of the express language of the bequest, he declares that he makes it “for the purpose of making my minor daughter, Sylvera E. Buchanan, to whom I have advanced nothing, share equally with said Estella Y. Hunter in my property and estate.” It is inconceivable that this father, who was apparently a man of more than ordinary intelligence, education, and experience, should thus clearly declare his intention to provide for full equality between his children, and in the same breath proceed to give the lie to that declaration by a provision which insures to the older daughter a very large advantage over the younger. The simple truth would seem to be that, in view of the tender age of the younger daughter and of the advisability of retaining her property interests intact until she reached maturity, he wisely undertook to suspend her right of possession until she should arrive at full age, and that meanwhile her property should be intrusted to the care and control of a guardian. In other words,
It is argued for appellee that the provision of the will for the appointment of a guardian may be satisfied and explained by relating it to that part of the child’s share which she was entitled to receive in addition to the legacy of $40,000. But the testator does not so limit his directions. He speaks of a guardian, who “shall care for and preserve her property during her minority. ’ ’ By what authority shall we say that this reference to “her property” contemplated only a lesser fraction of the property he was giving her ? Moreover, we are not seeking to discover what meaning might with grammatical and legal propriety be placed upon single sentences or clauses of this will, but rather for the intent and purpose which the instrument as a whole was intended to embody. That the testator intended an immediate vesting of the child’s right to the legacy and the early payment of the same into the hands of her guardian is clearly implied from that part of the sixth paragraph of the will which authorizes the executrix to pay the bequest of $40,000 made to Sylvera “by the assignment of securities which I may have on hand. ’ ’ This has evident reference to securities which he might have on hand at the time of his death, and goes far to negative the existence of any thought in his mind that the executrix was bound to keep the estate to this extent open for a long series of years, and meanwhile withhold payment of the legacy from the legatee and her guardian. That the declared intention of the testator to equalize the distribution of his property between his children should be respected and enforced by allowing interest or income on a deferred legacy to one of them is distinctly held in Couch v. Eastham, 29 W. Va. 784 (3 S. E. 23). The soundness and propriety of such rule are not open to question.
We think it unnecessary to consider the extent to which the mere fact that the legatee in this instance was a minor
*674 The rule thus appealed to and applied is one so elemental that it requires no argument to demonstrate that the'intent of the testator, gathered from the will and surrounding circumstances, is the rule of rules to be applied in determining in any given case the operative effect of a will in respect to a gift to take effect in possession in futuro as it is in respect to all other testamentary provisions, and that any dictum which overlooks it is to that extent inaccurate. The expressed intent maj'- be that the legatee shall, at a future time named, receive the principal sum designated, and that sum only. It equally well may be his intent that the principal sum shall be set aside in the distribution of his estate, to be held with its accretions for the benefit of the legatee, but with the right of possession withheld from him until some future time. The intent may conceivably assume some other form, but, whatever it be, if it be sufficiently expressed and within the law, it will be effectuated.
Having thus stated the law, the soundness of which is not open to question, and further saying that the language of the will and the fact that the legatee was but 14 years of age when the will became operative were all which the record revealed as a basis for ascertaining the testator’s intent, the court proceeds as follows:
The fifth paragraph of this will begins with a bequest of $1,000 to Ernest, couched in the language of an absolute present gift, to take effect in point of right unqualifiedly and in respect to both enjoyment and possession immediately upon the death of the testator. The qualifying language, ‘to be paid to him on his arriving at the age of twenty-one years,’ is that which would naturally occur to one who was desiring to provide for a postponement of the time when the right of possession would attach. It neither creates a contingency or condition nor operates to delay the vesting in point of right. It in no way suggests that the benefit of the fund resulting from its investment should not ultimately inure to the beneficiary, the fund simply being held for his benefit until he should become entitled to its possession. It would be quite in consonance with the language that it should. The testator’s purpose might, indeed, be otherwise; but such purpose is not indicated. In this connection the minority of Ernest becomes*675 peculiarly significant. He was not legally capable of holding and managing property personally, and would not be until he was 21. A guardianship would be the anticipated consequence of a gift to him of the right of possession. What more natural course for the testator to pursue than to provide for a holding for his benefit until his incapacity should come to an end? This would appear to have been the thought in the testator’s mind, and doubtless it was a desire on his part to make suitable provision for the period of Ernest’s minority, and not one to ultimately withhold from him the full benefits of the fund designated for him, which dictated the provision postponing the right of possession.
In another paragraph the court pertinently remarks:
It is scarcely conceivable that the testator contemplated that the final settlement of his estate should be deferred a possible seven years, either for the payment of a legacy of $1,000 or for administration of the small sum of interest which might accrue upon that sum.
The applicability of this discussion by the Connecticut court to the ease at bar is so manifest it needs no elaboration on our part, and is so in accord with the views we have already expressed that it justifies our liberal quotation therefrom.
Referring to the general subject of interest upon legacies the Nebraska court has said:
It is to be allowed if the testator so intends, and intention' is to be derived from the construction of the whole will. (In re Knight’s Estate (Neb.) 135 N. W. 379.)
In Budd v. Garrison, 45 Md. 418, the intention of the testator to give the legatee the accruing interest upon his legacy was held to be sufficiently shown by the fact that the will provided for a guardian for the beneficiary. Upon this subject the court says:
In the will before us the controlling fact is that the testator appoints a guardian for these legatees. Whether he had power to make such appointment is unimportant, but it clearly*676 manifests his intentions that such guardian should receive this legacy from the executor, or collect it from the estate on which it was charged, and hold it for the benefit of the wards.
Upon the same general question it is said by the Massachusetts court that:
Every case turns upon the intention of the testator as expressed in his will. The facts, however, that the right of property is vested in the petitioners [legatees] during their minority, and that the trust was created only that during their minority the property might be held and managed by trustees, are significant in determining the disposition which the testator intended to be made of the income. The beneficial owner of trust property is the owner of the income of it, unless some other intention is expressed. (Wright v. White, 136 Mass. 470-476.)
Reaching the conclusion, as we do, that the will clearly discloses the intent of the testator to vest his infant daughter with the full one-half of his estate, including the advancement made to the elder daughter (subject, of course, to the rights of the widow), and that to such extent he vested her with the absolute right to the preferential legacy of $40,000, withholding only the right of possession during her minority, and that such right became fully vested when the will became effective by the testator’s death, it follows that the order of the district court requiring the executrix to withhold the distribution of said funds until the child should arrive at full age, and to treat the income accruing therefrom as a part of the residuum of the estate, to be shared or divided between the appellee and her sister, cannot be sustained.
II. ¥e turn now to the questions presented by the ap-pellee’s cross-appeal. It is said the court erred in recognizing or sustaining the legacy to Sylvera for the principal sum
*678 When a testator says, through his will, to his executors, ‘You shall divide my estate equally between my children, share and share alike,’ and then specifies the amount each has received in his lifetime, what rational conclusion are we to draw but that the amounts so received shall be deducted from their shares ? Under such circumstances the direction to divide equally necessarily involves such deduction. The fact of the indebtedness of each child, and the amount thereof, was a matter within the personal knowledge of the testator; and he had a right to say that the indebtedness of his children, as he stated it in the will, should be deducted from their shares. Even if a mistake had been made, I am unable to see how it could be corrected upon distribution, without making a new will for the testator. ... A legatee is but a volunteer, at best, and must take the bounty of a testator upon the terms in which it is bestowed.
And this we think is the rule of all the authorities without substantial exception. Por example, see Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Chambers v. Watson, 56 Iowa, 676; Schouler’s Wills (2d Ed.), section 569; In re Cummings’ Estate, 120 Iowa, 426; Nelson v. Nelson, 7 B. Mon. (Ky.) 672; McAlister v. Butterfield, 31 Ind. 25; Callender v. Woodard (Tenn. Ch. App.) 52 S. W. 756; Ballinger v. Connable, 100 Iowa, 600; 40 Cyc. 1924.
It is finally objected on the part of the appellee that the court awarded to the widow one-third of the estate as it stood at the date of the distribution. This it is claimed is an
It follows, from what we have said, that the judgment below must be reversed on the plaintiffs’ appeal, and affirmed on the defendant’s appeal, and the cause will be remanded to the district court for further proceedings in harmony with this opinion. Costs will be taxed to the appellee.
Reversed on plaintiff’s appeal. Affirmed on defendant’s appeal.