| Iowa | Oct 18, 1921
This appeal involves the construction of the will and several codicils of Harriette S. Daniels, deceased, the material paragraphs of which are as follows:
Items 3, 4, 5, and 7 of the will:
“Item 3. I give, devise and bequeath unto my executors,' iii trust, for my sister, Lydia B. Ely, of Brookline, Mass., in token of my love and affection, and in recognition of her kindness to me in times past, the sum of five thousand dollars ($5,000), to be invested as my executors shall see fit, the income of which investment I direct them to pay to my said sister during her lifetime, and upon her decease, it is my will and I so direct, that my said executors shall pay the principal of this bequest, five thousand dollars ($5,000), to Mary E. Page, daughter of Caroline A.
“Item 4. I give, devise and bequeath unto my niece, Mrs. Caroline A. Page, daughter of my sister, Lydia B. Ely, “of Brookline, Mass., aforesaid, the sum of five thousand' dollars ($5;000).
“Item 5. I give, devise and bequeath unto Miss Mary E. Page, daughter of said Mrs. Caroline A. Page, of Brookline; Mass.,'the sum of five thousand dollars ($5,000).
“Item 7. I give, devise and bequeath unto Mary Reynolds Ely and Lydia B. Ely, daughters of my said nephew, Elisha D. Ely, of Canton, Ohio, the sum of five thousand • dollars ($5,000) each.”
Paragraphs 2 and 3 of the third codicil:
‘ ‘ Second. I hereby cancel and revoke Item 3 of my said last will and testament, and in lieu thereof I hereby give, devise and bequeath unto my executors in trust for my sister, Lydia B. Ely, of Brookline, Massachusetts, in token of my love and affection, and in recognition of her kindness to me in times past, the sum of five thousand ($5,000) dollars, to be invested as my executors shall see fit, the income of which investment I direct them to pay to my said sister during her lifetime, and upon her decease it is my will, and I so direct that my said executors in trust shall pay the principal of this bequest, five thousand ($5,000) dollars to Mary Reynolds Ely and Lydia B. Ely, daughters of Elisha D. Ely, share and share alike.
‘ ‘ Third. I hereby cancel and revoke Item 5 of my said last will and testament, and in lieu thereof I hereby give, devise, and bequeath unto my executors in trust, for Caroline A. Page, daughter of my sister, Lydia B. Ely, of Brookline, Massachusetts, the sum of five thousand ($5,000) dollars to be invested as my executors shall see fit, the income of which investment I direct them to pay to the said Caroline A. Page during her lifetime, aud upon her decease it is my will, and I so direct, that my executors shall pay the principal of this bequest, five thousand ($5,000) dollars to Mary Reynolds Ely and Lydia B. Ely, daughters of' Elisha D. Ely, share and share alike.”
‘ ‘ Item. II. I hereby revoke and cancel ‘ Item 3 ’ of my said will and in lieu thereof, I now give, devise and bequeath to Mary Reynolds Ely and Lydia B. Ely, daughters of Elisha D. Ely, the said sum of five thousand ($5,000) dollars, share and share alike in addition to what I may have devised to them in my said will or-codicils thereto.
“Item III. I hereby revoke and cancel ‘Item 4’ of my said will and in lieu thereof, I now give, devise and bequeath the five thousand ($5,000) dollars therein devised to my niece, Mrs. Caroline A. Page, to the above named Mary Reynolds Ely and Lydia B. Ely, share and share alike, in addition to what I may have devised to them in my said will or codicils thereto.
‘ ‘ Item IV. I hereby revoke and cancel ‘ Item 51 of my said will wherein I devised unto Mary E. Page five thousand ($5,000) dollars and now devise and bequeath the sum of five thousand ($5,000) dollars to the said Mary Reynolds Ely and Lydia B. Ely, share and share alike, in addition to what I may have devised to them in my said will or the codicils thereto.”
Item 14 of the fifth codicil:
‘ ‘ Item 14. I hereby revoke and cancel Item 2 of my second codicil to my will of date June 30, 1906, which said codicil bears date of July 21,1914, and which codicil revokes and cancels Item 3 of my said will, and in lieu thereof I now give, devise and bequeath to Mary Reynolds Ely, daughter of Elisha D. Ely, the said sum of five thousand dollars ($5,000) this bequest being in addition to what I may have heretofore devised to her in my said will, or any codicil thereto.”
Perhaps a brief restatement of the material provisions of the several instruments requiring our consideration, or throwing light upon the intention of testatrix, will enable us to make somewhat clearer the points at issue. First, as already shown, the will, among other things, makes three bequests of $5,000 each, as follows: $5,000 to Mary E. Page, Mary Reynolds Ely, and Lydia B. Ely, share and share alike, subject to the payment
The only controversy between the parties is as to what effect, if any, shall be given to Paragraphs 2 and 3 of the third codicil. The court below found that neither of appellants — that is, Mary Reynolds Ely or Lydia B. Ely (now Horner) — took anything by Paragraphs 2 or 3 of the third codicil; that] by the fourteenth paragraph of the fifth codicil, Mary Reynolds is entitled to $5,000; that, by Paragraph 3 of the fourth codicil, each of 'ap
Looking further to the provisions of the third and fourth codicils, it will be observed that Paragraph 2 of the third codicil is identical with Paragraph 3 of the original, except that the former eliminates Mary E. Page from participation in the $5,000 bequeathed thereby; that, by Paragraph 3 of the third codicil, which revoked Paragraph 5 of the will, testatrix gave the income from $5,000 to Caroline A. Page during her life, and the .principal to Mary Reynolds Ely and Lydia B. Ely, who are not mentioned in Paragraph 4 of the will,
The language of Paragraphs 2, 3, and 4 of .the fourth .codicil is materially different from that used in the third, but quite as definite and specific. The language of Paragraph 2 is that ‘ ‘ I hereby revoke and cancel Item 3 of my said will and in lieu thereof I now give, devise and bequeath to. Mary Reynolds Ely and Lydia B. Ely * * * the said sum of five thousand dollars, share and share alike;” and then follow the words, “in addition to what I may have devised to them in my said will or codicils thereto.”
Paragraph 3 of the fourth codicil, which revoked Paragraph 4 of the original will, is not in controversy; but attention is called to the fact that the $5,000 which Paragraph 4 of the will gave to Caroline A. Page, testatrix now gives to aj>pellants, share and share alike. The language of Paragraph 4 of the fourth codicil, which revoked Item 5 of the will, is similar to that of Paragraph 2, but the word “said” is omitted therefrom.
Much emphasis is given by appellants to the words in both the second and fourth paragraphs of the fourth codicil, “in addition to what I may have devised to them in my said will, or codicils thereto.” It must be conceded that this language is significant, and is entitled to serious consideration in the interpretation of the several instruments involved. The words “said :sum of five thousand ($5,000) dollars” clearly and definitely refer- to the sum referred to in Paragraph 3 of the will. The
It is urged by counsel for appellants, that none of the bequests are of specific property, and that a legacy is specific only "when it is the intention of the testator that the legatee should have the very thing bequeathed to him, and not merely a corresponding amount in value." This language is quoted from Bales v. Murray, 186 Iowa 649" court="Iowa" date_filed="1919-04-14" href="https://app.midpage.ai/document/bales-v-murray-7118349?utm_source=webapp" opinion_id="7118349">186 Iowa 649. The distinction between a specific and a general legacy is that the former refers to a particular thing, capable of precise identification; while the latter is one which does not refer to any certain or definite property, capable of precise identification, and which must be paid and satisfied out of the general assets of the estate.
The question at this point is not whether the will refers to particular sums of money that have been segregated and so set apart as to be capable of precise identification, but is: What was the intention of the testatrix? Had she formed the desire and intention of disposing of three sums of $5,000 each to certain of her relatives repeatedly named in a particular way ? Had these separate sums assumed in her mind the form of specific items of property, and if so, is it not the duty of the court, in the construction of her will and the several codicils thereto, to so treat these bequests?
The words "said sum of $5,000” can be understood only as referring to a prior bequest of a like sum, which she had forgotten or overlooked. Corroboration is given to this thought by the fact that, in the opening paragraph of the fourth codicil, she
It is our conclusion that testatrix at all times had in mind three separate sums of $5,000 each, which, although not specially segregated from her estate and set apart as in the form of notes, bonds, or certificates of deposit, had, nevertheless, assumed the same character or classification in her mind as though they were so set aside and designated; and that it was her intention, when she executed the fourth codicil, to revoke all prior bequests of these sums. She at no time intended same to be additional to the items mentioned in Paragraphs 2 and 3 of the third codicil. The effect of the execution of the fourth codicil was to revoke these bequests.
It follows that, as found by the court below, Mary Reynolds Ely takes $5,000 under Item 14 of the will and $2,500 under the third and fourth paragraphs of the fourth codicil, and that Lydia B. Ely Horner takes $2,500 under each of the third and fourth paragraphs thereof, and nothing under Paragraph 2, which, as stated, was revoked by Item 14 of the fifth codicil. It follows that the finding and judgment of the court below must, be and are — Affirmed.