215 N.W. 615 | Iowa | 1927
The questions presented for review arise upon exceptions of appellants to the final report of the executrix. Before considering the issues thus raised, we will dispose of the motion filed by appellee to dismiss the appeal. The 1. APPEAL AND executrix alone was served with notice of the ERROR: appeal. It now appears that she has made final notice: distribution of the estate to the legatees named claim in in the will, and been discharged as executrix. probate: This was all done after the order and judgment legatees appealed from was entered. It is true that the unnecessary legatees to whom distribution has been made have parties. a monetary interest in the result of this appeal, but they are not now, and never, in fact, have been, parties to the record. The service of notice upon the executrix was all that *608 was necessary. As stated, the issues tried were presented by the exceptions and objections of appellants to the final report, and any distribution made of the personal property by the executrix is subject to the result of this appeal. The legatees are not parties in such sense that it was necessary that they be served with notice of the appeal. The motion is overruled.
The will of the decedent in Item 1 directed that all just and lawful debts of the testator and the expenses of 2. WILLS: his last sickness and burial be paid as speedily testamentary after his death as practicable. This item is power: followed by others, in which a number of proceeds of specific bequests not in any way in controversy life in this proceeding are made. Item 7 of the will, insurance. which is the one in controversy, is as follows:
"Item VII. Subject to all the foregoing, and to the payment of the costs and expenses of administration of my estate, I do hereby give, devise and bequeath all the rest, residue and remainder of my estate, whether real, personal, or mixed, and wheresoever situate (including the proceeds of all policies of life insurance and accident insurance, which are, or at the time of my death are payable to my executors, administrators, or to my estate), unto the First National Bank of Sioux City, Woodbury County, Iowa, as trustee * * *."
The claims of appellants were filed, and allowed by the executrix, and found by the court to be just, but the assets of the estate, outside of the life insurance, were insufficient to pay them. The court held that the proceeds of the life insurance are not subject to, or liable for, the payment of testator's debts, and overruled the exceptions and objections of appellants to the final report. This presents the only question before us for decision.
Two propositions are relied upon by appellee for affirmance. They are (a) that the will in question does not attempt to charge the debts of the testator upon the proceeds of insurance, and (b) that the avails of life insurance payable to the estate of the deceased are not chargeable with the payment of his debts. The contention of appellant, of course, is that neither of the foregoing propositions are true. It has been held in other jurisdictions, in which the right of the insured to make testamentary disposition of insurance is recognized, that the intention to so dispose of it must be clearly expressed in the instrument. Chrisman *609 v. Chrisman,
The devise of the proceeds of the testator's policies of life insurance is specifically made subject to the prior provisions of the will. This, it seems to us, evinces a clear purpose on his part to provide for the payment of his debts out of the proceeds of his life insurance. The first item of the will related to the payment of debts and other expenses, and the clause quoted makes the bequests thereof subject to the prior provisions.
This being the intention of the testator, clearly expressed in the will, the next and more important and difficult question presents itself: Did the testator have a right, first, to dispose of the proceeds of life insurance by will, and second, to subject the same to the payment of his debts? The first question is answered by the recent decision of this court in Miller v.Miller,
The right of the insured to dispose of life insurance by will necessarily carries with it the right to set the same aside for the payment of debts. His right to do this is not prohibited by statute in this state. It follows that the order and judgment of the court below must be, and it is, reversed. — Reversed.
EVANS, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur.