191 Iowa 515 | Iowa | 1921
One Edo Duden died testate on the 15th day of November, 1918. The plaintiff is his widow. The main ques
"I give, devise and bequeath to my daughter Bertha Gerjets, for her use during her natural life, the Southwest Quarter of Section Fifteen (15) in Township Eighty-eight (88) North of Kange Thirty-two (32) West of the Fifth Principal Meridian in Calhoun County, Iowa, but she shall pay to my said wife Johanna Duden — each year so long as she may live, two (2) dollars per acre cash, after the death of my said daughter Bertha Gerjets, this land shall go to her heirs.”
By Paragraph 9 of the said will, all the personal property of the testator was bequeathed to his wife.
At the time of his death,' the testator owned 810 acres of land, which he divided among his several children by devises substantially in the same language as above set forth. The daughter Bertha Gerjets, the beneficiary under Paragraph 5 of said will, paid to her mother the sum of $2.00 per acre on the quarter section of land devised to her as long as she, the said Bertha, lived. Bertha died on February 7, 1917, since which date the said amount of $2.00 per acre has not been paid; and this action is brought by the widow of said testator against the surviving husband and heirs of the said Bertha, to impress the said annuity as a lien or charge upon the land.devised to her.
Three propositions are involved in this appeal: 1. Did the widow elect to take under the will of said decedent? 2. Is the annuity provided for to be paid during the life of the widow or during the life of the beneficiary, Bertha Gerjets, only? 3. In any event, is the annuity a charge or lien upon the land or a mere personal claim against the said Bertha Gerjets or her estate?
"The widow may elect to accept the devise at any time, and that this fact can be shown by any competent evidence that satisfies the court that she did so elect before death.”
We also said:
‘ ‘ The election determines the choice, and this choice may be shown by expressed words of election and, as in this case, the actual taking of the thing bequeathed, or it may be shown in any other manner that clearly makes manifest that an election has been made.”
See, also, Schubert v. Barnholdt, 177 Iowa 232.
Some light is thrown upon the intention of the testator by Paragraph 7 of the will, devising a portion of his real estate to his son. In said paragraph, the testator provided:
"But he shall give my said wife Johanna Duden the free use of one room in house on said place so long as she shall live and shall pay her each year so long as she shall live two (2) dollars per acre cash.”
It is very evident that, in the paragraph devising land to .the son, the language used by the testator was intended to provide for the use of the room and the payment of the annuity for and during the life of the widow of the testator. No other construction would be possible. We think that there is no doubt that a similar construction is to be placed upon the paragraph of
We must construe this will as a whole, and gather from it the purpose and intention of the testator, as therein expressed; and we think it is perfectly clear, 'obvious, and plain that it was the purpose and intention of the testator, by the language used, to provide for the payment of annuities to his widow that should be maintained and paid during the widow’s entire life. Any other construction would be doing violence to the language used, and be contrary to the obvious intention of the testator. If the construction contended for by the appellants is correct, then the prior death of the several beneficiaries would terminate the annuities to the widow and leave her without income during her declining years, a" situation which the testator obviously intended to pi’event. We construe this clause of the will to mean that the annuity provided for therein was to be paid to the widow of the testator for and during the term of the widow’s life, and not during the life of the devisee, Bertha G-erjets.
The provision in this will is an annuity. Being such, it may be made chargeable on real estate,- if the intention so to do
In Woodward v. Walling, 31 Iowa 533, the will provided:
“I give and bequeath to my son, Elisha Jennings (describing the lands devised), during his natural life, and after his decease to revert to his heirs, provided, however, that the said Elisha Jennings shall provide a home for his sister, Oriel Zerna, till her marriage, and then to give her an outfit equal to what her sisters have received at their marriage, provided, however, that, if the said Elisha Jennings does not accept of- the provisions of this will within 18 months from the date of this, then said property to revert to his sister, Oriel Zerna.”
We said:
‘‘The condition under consideration being for the benefit of plaintiff, without any expressed intention that its breach shall work a forfeiture of the estate, should be regarded as creating a trust or charge upon the land in her favor, to be enforced as other trusts and charges, and not as a limitation upon the estate devised. This is the doctrine announced in many cases arising under similar conditions.”
In Henry v. Griffis, 89 Iowa 543, the testator, by the terms of.his will, devised his real estate to his two sons, and gave the daughter a sum of money, and provided:
“If there is not personal property and money enough to make the amount, the boys is to pay enough to make the amount. ’ ’
We said:
“The district court, in making the $750 a lien on the real estate, must have applied a rule of law that the effect of the will was to create such a lien; and we are in accord with that view. Of course, such a purpose on the part of the testator is only to be inferred, but the inference must be a necessary one, to effectuate the testamentary intention; for it should be presumed that the testator designed that his estate, rather than the personal property of his devisees, should stand as security for the fulfillment of his bequests, or, in other words, the due execution of his will. Courts should not and will not sanction such a substitution, as security, to the prejudice of a beneficiary, in the absence of a*520 clear intention on the part of the testator. The consequences of the opposite rule are manifest in this case, where the substitution of personal security would take from one beneficiary, against a manifest intention of the testator, and give to another. In cases of doubtful construction, that one should prevail that will insure just results, and preserve a fair administration of the law.”
This case was cited and approved by us in Mohn v. Mohn, 149 Iowa 288. We see no reason why we should depart from this rule.
In Nash v. Taylor, 83 Ind. 347, it is said:
“A charge upon real estate may be made in express terms, or the intention of the testator may be gathered from the entire will, taken together. * * * It is firmly established that a charge may be implied, and requires no particular form of words.”
In Brown v. Knapp, 79 N. Y. 136, it is said:
' ‘ It is well settled that, when a legacy is given and directed to be paid by the person to whom real estate is devised, such real estate is charged with the payment of the legacy. ’ ’
Where a will by its terms provides for the payment of an amount annually by the devisee, it was held that the same constituted a charge upon the real estate. Appeal of Phillips, (Pa.) 7 Atl. 918. See, also, Merritt v. Buchnam, 78 Me. 504 (7 Atl. 383); Le Rougetel v. Mann, 63 N. H. 472 (3 Atl. 746).
Our previous holdings are determinative of the question here involved. The evident purpose of the testator was to provide a fixed annuity for his widow during her lifetime. He devised the land in question to his daughter, and by the language used in making said devise intended to, and did in fact, impose a condition upon the said devise which constitutes a charge and lien upon the land so devised for the payment to the widow of the annuity therein named.
The decree of the lower court was correct, and it is— Affirmed.
