129 Iowa 686 | Iowa | 1906
Martin Jenkins died November 15, 1899, seised of the N. W. fractional one-fourth of section 30 in township 80 in Dallas county, Iowa. He also left some personal property, which will be hereinafter referred to. He left surviving his wife, Nancy, and seven children, to wit, Joseph H., Edward F., Ethel Elva, and Yinta Blanche
First. It is my will that my wife Nancy Jenkins shall receive her maintenance from my estate during her lifetime, or so long as she shall remain my widow. In case she remarries after my death, she shall receive the sum of five dollars.
Second. I give and bequeath to my son Joseph Henry Jenkins the sum of five dollars.
Third. I give to my son Edward Franklin Jenkins the sum of five dollars.
Fourth. To my five daughters, viz., Ada Melissa Gilmore, Emma Florence Deardorff, Lillie Ann Tilden, Ethel Elva Jenkins and Yinta Blanche Jenkins, I give and bequeath the undivided one fifth of the west half of the northwest fractional quarter, section thirty, township eighty, range twenty-nine west 5th P. M., Iowa, and all my personal property of whatsoever kind that I may die seized of after all my legal debts are paid and discharged, including my last sickness and funeral expenses. In case either or any of them should die prior to my death, then her share to revert to her heirs, or should she die without issue, then her share shall revert to the remaining daughters. I furthermore request that the real estate described shall not be sold to make a division of the same, except it be by the consent of the majority of my five daughters or their legal heirs.
Fifth. I hereby appoint A. J. Hemphill, of P añora, Iowa, executor of this my last will and testament, hereby revoking all former wills by me made.
After testator’s death, the heirs and devisees other than Edward F. conveyed to said Edward the east 80 acres of the fractional tract, pursuant to an alleged purpose on the part of the deceased to convey the same to him before his death.- It is now-claimed that the devisees named in the fourth paragraph of the will took the west half of the fractional quarter absolutely; that defendant and appellant
Unless appellees, the devisees under the fourth paragraph of the will, take all of the land therein described, then partial intestacy results, as there was no residuary clause, and appellant Joseph II. is entitled to his share of the remainder; for we must assume that, in giving more to these devisees than he did to Joseph, he equalized the matter between them as he thought it should'be done, and there is no room for any presumption in the matter. So that the entire case turns upon the construction to be placed upon this fourth division of the will. If it gave to the devisees therein named the whole of the land, and not one-fifth thereof, the decree of the trial court is correct. But if it gave them but one-fifth, then they take the remaining four-fifths with their brothers; each being entitled to four thirty-fifths of the land ; because it was not devised to any one. Taking this fourth paragraph of the will alone, it is clear that the. testator devised to his daughters, naming them, the undivided one-fifth of the land therein described. Ordinarily such a gift -would be considered as made to a class, and, in the event of the death of any one of them, the survivor or survivors would take the whole. Swallow v. Swallow, 166 Mass. 241 (44 N. E. 132). And if this were all there is of the will we should have no difficulty in saying that the gift to the class as a whole was of but one-fifth of the entire estate. But the testator removed this idea of survivorship by providing that, in case of death of any of them, her share should go to her heirs, if she had any, and, if not, then to the remaining daughters. This is a clear indication that he intended them to take distributively, and not as a class.
Looking again to this fourth paragraph of the will, we discover no ambiguity or doubt therein. He gave to his five daughters, naming them, the undivided one-fifth of the land. There can.be no doubt, or ambiguity, or uncertainty in this; no more so than if he had given, them an undivided one-half or an undivided one-third. The fact that he gave a fifth and that there are five children does not of itself create any ambiguity or uncertainty as to the estate devised. Both the names of the beneficiaries and of the estate granted are certain and unambiguous. Were it not for the fact that a fifth is given, instead of a third or a half, this litigation would never have arisen. But as there were five daughters, to whom he gave an undivided one-fifth of the land, it is contended that each was to take one-fifth, and evidence dehors the will was introduced to show that this was testator’s intent.
3. Construction ofof wills: Parol evidence. Primarily, the testator’s intent is to be gathered from' tne will itself. Parol evidence cannot be received to give a will operative elements, language,, or provisions not in it before; for such testimony is only admissible for the purpose of affording light whereby what . . * j J + J 1 is in a will may be read, understood, and ap-
plied. In Root’s Estate, 187 Pa. 118 (40 Atl. 818); Bower v. Bower 5 Wash. 225 (31 Pac. 598.) The fallacy in appellees’ argument lies in the assumption that some word must be supplied to make the will intelligible; that is to say, they contend that either the word or each,” or “ all,” several,” or “ joint,” must be put into the will in order to make it. intelligible. If this were true, then their con
We have gone as far as any court in permitting extrinsic evidence in aid of the construction of wills, but have never yet held that such evidence is admissible for the purpose of changing a will, or to aid in the making of a new one — one which the testator intended, but did not in fact make. See Moran v. Moran, 104 Iowa, 221; Wright v. Wright, 122 Iowa, 552; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674. In support of the rules we have announced, see Redfield on-Wills (3d Ed.) vol. 1, pp. 527, 528-549; Rothmahler v. Myers, 4 Desaussure (S. C.) 216 (6 Am. Dec. 613); Griscom v. Evens, 11 Vrom (N. J.) 402 (29 Am. Rep. 251). Courts are justified in some cases in changing the language of a will; in discarding words where they appear to be without meaning; in supplying and transposing words and sentences, and even paragraphs. Jordan v. Woodin, 93 Iowa, 453. But this rule is always subject to the primary one that a court cannot correct a mistake in a will, or make a new will for the parties. Page on Wills, sections 817, 820, and cases cited. But it is said that a will should.be so construed, if possible, as to prevent partial intestacy. When the will is subject to two constructions, this is, of course, true. Page on Wills, section 466. But the rule does not apply here, for it is admitted that the testator did not dispose of all of his real estate. The east, half of the fractional quarter was nof disposed of either by will or deed, but after testator’s death was conveyed by all the heirs save Edward to him (Edward), pursuant to an agreement between them, in furtherance of an assumed or proved intent on the part of
The trial court should have awarded four thirty-fifths of the land described in the fourth paragraph of the will to defendant and appellant Joseph Henry Jenkins; and the cause will be remanded for a decree in harmony with this