34 Iowa 437 | Iowa | 1872
This case turns upon the single question whether the devise to Euretta Green, and over, to James Boohar, is a residuary devise. If it is, then the plaintiff is not entitled to contribution, and the demurrer was properly sustained; but if it is not a residuary devise then the plaintiff has stated a case in his petition, and the court erred in sustaining the demurrer.
The second item of the will embraces, under the phrase of “ the plantation on which we now reside, situated in the township aforesaid, and also the township of Prairie Creek,” all the real property owned by the testator at the time, and- contained two hundred acres, in seven governmental subdivisions, and which could not be specified by government surveys, in less that six separate or distinct descriptions. The specific devise to Euretta Green, being item third, is forty acres, contained in one of these descriptions. The next item in the will, and the one upon which the controversy arises, devises “ the balance of my real estate ” to the plaintiff. If the testator, in this item, had specified, in his will, the six remaining governmental subdivisions by their separate descriptions, instead of using the words “the balance of my real estate,” it would have been conceded at once, a specific devise. Is it any less a specific devise, because the testator has used a single general description, instead of the six separate descriptions ? We think not. The general description was more easy and quite as natural and consistent with the intent to specifically devise it, as if the more extended and particular description had been employed.
In a recent and excellent work on wills, it is said that “ it seems to be universally conceded that a devise of real estate is always to be regared as specific, whether the estate is specifically described, or only in general terms, and by reference to other facts and documents.” 2 Redf. on Wills (2nd ed.), p. 144, par. 21; citing 1 Rop. 194; Forrester v. Leigh, Amb. 171, and other cases. The same
Reversed.