72 Iowa 601 | Iowa | 1887
Philip Wagner, in his life-time, executed a will, which was duly admitted to probate. With the exception of the first, the several paragraphs in the will are not numbered, but, for convenient reference thereto, we will number them. In the first three paragraphs, certain real estate is specifically devised to the plaintiíf and a brother and sister. The real estate so devised is specifically described, and the fourth and fifth paragraphs are as follows: nFowrth. As to the residue of my estate, real, personal and mixed, after the above bequests, I give and bequeath to my only children, John Calvin Wagner, Lucinda, Heidlebaugli, Malinda Westbrook and George Washington Wagner, share and share alike. Fifth. Any real estate not above bequeathed, and remaining unsold at my death, I hereby authorize my executor to sell or dispose of the same to the best interest of all concerned; the executor to use his own discretion in disposing of the property to the best advantage. All stock on hand at my death intended for pasture during the season shall remain and be pastured, on the pasture land, under the direction of my executor, without change or interruption by any to whom said land is bequeathed, for that season.” The defendant G. W. Wagner was by the will appointed executor. At the time of his death, the testator owned considerable real estate which was not specifically devised or described in the first, second or third paragraphs; but the plaintiff claims that such real estate was devised to the persons named in the fourth paragraph, and that she is entitled to a partition thereof. On the other hand, the defendant claims that by the fifth paragraph the executor was authorized to sell such real estate, and distribute the proceeds as provided in the preceding paragraph. A demurrer to the answer setting up such defense was sustained- — -to which the defendant excepted, and elected to stand on the answer; and it was ordered and adjudged by the court that the land described in the petition be partitioned.
REVERSED.