139 Iowa 219 | Iowa | 1908
J ohn H. Brown died on or about June 25, 1906, at the age of forty-eight, leaving surviving two daughters, Zella Stinson Snider and Hazel Brown, a minor, and his divorced wife, Ida Brown, whom we shall call the proponent. On the 3d day of December, 1903, he executed a last will and testament in due form, whereby he devised all his estate, save the sum of $1,000 to each of his children, “ to his ■wife Ida.” This will was duly filed for probate, and the daughters filed objections to the probate thereof, claiming that, as Ida Brown was divorced from J ohn II. in May of the year 1905, she ceased to be his wife, and could not take under the will; that in the divorce action the property rights of the parties was settled by the decreethat, by reason of changes and alteration of relations and conditions, the will was revoked, and no longer continued to be the last will and testament of the deceased. The contestants also pleaded:
That the possession of said last will and testament was by the proponent clandestinely preserved, and the alleged*221 will itself preserved with the knowledge upon her part that the said decedent, John H. Brown, was informed and believed that said alleged will had subsequently to said action for divorce been physically destroyed in pursuance of the direction and intendment of said John H. Brown, deceased, at the time of the making, entering, and recording of said decree of divorce; that, by reason of the foregoing, the said alleged will was revoked by the said John H. Brown in his lifetime, and the proponent takes no property or property right thereunder, and has no such interest in the estate or property of the late John H. Brown as would authorize her to propose the will for probate.
In an amendment to the objections of contestants, they pleaded that, upon the making of the will, it was deposited with the wife, Ida, for safe-keeping, and that she kept it until filed for probate; that in the divorce action which was brought by the wife an agreement was entered into between the parties with respect to their property rights which was passed into the divorce decree, providing that certain money and property awarded to the wife, Ida, should be in full payment and satisfaction, and discharge of all her interest in and to the property of John H. Brown; that the money and property awarded to the wife were thereafter paid and delivered to her, and, that deceased’s obligations to his wife were thereby fully discharged. It was further pleaded that the wife knew of the provisions made for her in the will, and that deceased made the settlement of their property rights in the divorce suit, intending it to be an annulment, cancellation, and abrogation of the prior provisions made in the will, and as “ a definement and limitation of the property to be received by the wife ”; that, notwithstanding this knowledge on the part of proponent, she clandestinely and fraudulently preserved the will, and is now attempting thereby to defraud the estate of her former husband, now deceased. These facts are relied upon also as an estoppel. Proponent demurred to these objections for the reason that the facts therein stated do not operate as a revocation
The other ease is one in equity brought by the contestants in the probate court to set aside the probate of the will upon substantially the same grounds as were stated in the objections to the probate of the will. The defendants in that action pleaded the judgment of the probate court upon the demurrer, in bar of the suit, and maintain that the order admitting the will to probate is a complete and final adjudication of the matter in controversy. In addition to asking that the order admitting the will to probate be set aside, plaintiffs in the equity case ask that title to the property be quieted in them, and an order restraining Ida Brown and Arthur Hurtt from qualifying as executors, or in any manner interfering with the property left by the deceased. The equity case went to tidal on the issues joined, resulting in a decree dismissing plaintiffs’ petition. This decree was passed April 16, 1907, and at that time no appeal had been taken from the order in probate. The appeal in that case was taken April 27, 1907.
Any question, then, which goes to the validity of the will as a whole, or to the cancellation or revocation thereof,
The said plaintiff is entitled to, and is hereby allowed and granted, a judgment against the defendant for the sum of thirteen hundred and fifty ($1,350) dollars, $50 of which goes to the child. In addition thereto, the said plaintiff is entitled to and is hereby allowed and granted all of the household and kitchen furniture in the homestead of the parties, located at No. 310 Eirst Street West, in the city of*224 Cedar Rapids, Linn county, Iowa, of whatever source and kind, together with all the beds and bedding therein contained, excepting the gas range in the kitchen of said homestead and the furniture, bed, and bedding necessary and proper for the furnishing of one bedroom. These last two items belong to'defendant herein. It is further found, adjudged, and decreed that the defendant shall pay to plaintiff on the 17th day of May, A. D. 1906, and on each 17th day of May thereafter, until such child, Hazel, shall become of the age of eighteen (18) years, the sum of fifty ($50) dollars, the same to be used by said plaintiff in the support, clothing and education of said child, and that this charge of fifty ($50) dollars per year, in all aggregating the sum of three hundred and fifty ($350) dollars, is hereby made a lien on all real property now or hereafter belonging to said defendant, until the same is fully paid, and judgment is hereby rendered against said defendant for said sum of three hundred and fifty ($350) dollars, the same to cover the seven years intervening between this year and the year that said child, Hazel, becomes of age, the household and kitchen furniture going to the plaintiff to include one piano now located in said residence. That the foregoing provisions for and in behalf of the plaintiff when paid and complied with by the defendant shall be in full payment, satisfaction, and discharge of all her interest in and to the property of the defendant.
Ademption is the extinction or satisfaction of a legacy by some act of the testator which is equivalent to a revocation of the bequest or which indicates an intention to revoke. It may be accomplished by a gift to the legatee or by such disposition of the subject of the bequest as to make the will impossible of operation. Kenaday v. Sinnott, 179 U. S. 606 (21 Sup. Ct. 233, 45 L. Ed. 339) ; Burnham v. Comfort, 108 N. Y. 535 (15 N. E. 710, 2 Am. St. Rep. 462) ; Conn. Co. Case, 75 Conn. 683 (55 Atl. 171). The doctrine does not according to the almost universal voice of authority apply to devises of realty. Burnham v. Comfort, supra; Campbell v. Martin, 87 Ind. 577; Marshall v. Rench, 3 Del. Ch. 239; Fisher v. Keithley, 142 Mo. 244 (43 S. W. 650, §4 Am. St. Rep. 560). See, also, In re Hall’s Estate, 132
The trial court was right in sustaining the demurrer. The result is that each case must be and it is affirmed.