123 Neb. 97 | Neb. | 1932
Alice E. Curtis, the appellant in this court, filed a petition in the county court of Lancaster county, asking .that the will of her late husband, Dr. Wesley L. Curtis, who died March 9, 1931, be construed. Deceased left surviving him the appellant and three children by his first marriage, Mary C. Peterson, Martha E. Curtis, and Donald W. Curtis, as his only heirs at law. His last will and testa
In paragraph 6 of his will he provided that the proceeds of three life insurance policies which he carried, in the aggregate sum of $5,000, should be shared equally by his two daughters, Martha and Mary, but further provided in said paragraph: “The proceeds of such policies will constitute no part of my estate, but it is my will that for the purpose of effecting distribution between my wife, my two daughters and my son Donald W. Curtis in accordance with my will, the court administering my estate and the ex
After the death of Dr. Curtis, the Lincoln Trust Company was appointed executor of his estate, and such executor joins in this action, asking for a construction of this will.
The appellant contends that, by the seventh paragraph of his will, he provided that the appraised value of his residence property should be taken into consideration in estimating the total value of his estate, and that his widow and son should have from his other property a one-fourth value of his estate; in other words, that the appraised value of his home property, which he had deeded to his daughters, Mary and Martha, and in which he had only reserved a life estate, should be added to the
It is contended by counsel for appellees that upon February 13, 1930, when Dr. Curtis drew his will, there was nothing to indicate that he was in any immediate danger of death, but, unfortunately, his death did occur some 13 months thereafter; that he did not know, when he drew the will, what real estate he might become the owner of, and that the seventh paragraph of the will would have covered any other real estate that he might have acquired before his death.
Appellees contend that this part of the will was doubtless copied by Dr. Curtis from an older will, especially that portion of it saying, “It may be that I shall convey real estate to my said daughters prior to my death,” for the truth was that he had already conveyed the home property to his daughters on July 14, 1925, before he wrote the will, and the only interest he had therein was a life estate; and further contend that, if this widow was to have a one-fourth interest in the value of the home property, deeded to Martha and Mary, it would violate the antenuptial agreement, in that it would give her a one-fourh interest in property which she had renounced in that antenuptial agreement.
Let us consider the condition in case Dr. Curtis had left absolutely nothing but the insurance and his home property, both in the names of the two daughters. If this was the total estate, then, to secure a one-fourth interest for the son and the widow, the executor would be compelled to go into the district court and sell the home property to secure money from which to pay the one-fourth shares going to the son and the widow. Could this be done? The will, in the last sentence of paragraph 7, provides: “Nothing in this will contained, however, shall lessen, hinder or impair in any manner the title and estate in said real estate vested in my said daughters
In In re Estate of Smith, 117 Neb. 776, it was held: “Where an irreconcilable repugnancy exists between two provisions of a will, the later will prevail over the earlier, unless from a consideration of the entire will a contrary intention is evinced.”
Under the present law of Nebraska, as set out in the above case, this court finds no error in the record and judgment of the district court, and the same is
Affirmed.