Henderson v. Green, 34 Iowa 437

34 Iowa 437 | Iowa | 1872

Cole, J.

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.

That a court should, for the purposes of construction, place itself, as far as practicable, amid the surroundings of the testator, and should so construe the will as to effectuate his intent is not questioned. There is no controversy between counsel as to the question upon which the case turns, nor as to the rales of interpretation; hence we need not further state or discuss them.

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 author says, also : “ The most obvious, and the chief reason, why descended estates have been held liable before devised estates, is, that every devise of real estate is regarded as specific, and this will be so regarded, as we have seen, although the devise be contained in a general clause in the will, or even where it comes under the general words ‘ all the residue of my estate, real and personal.’ ” 3 Redf. on Wills (2nd ed.), p. 367, par. 20; sed vide, as to modifications of this, id. note, 36, and authorities cited. And in Walker v. Parker, 13 Peters, 166, it was held, that a devise of “ the balance of my real estate, believed to consist of lots, numbered six,” etc., was a specific devise. And further, it was held, in Gibbins v. Eyden, Law Rep. 7 Eq. 371; S. C., 17 W. R. 481, that where two estates were subject to a mortgage, and one was specifically devised, and the other passed by the residuary clause, that both estates were equally and ratably holden for the mortgage. In this case it is manifest from the terms of the will, that the testator intended Euretta Green should take the forty acres devised to her, burdened with the dower right of his widow, or, that which he had devised to his wife in lieu of her dower, to wit: her life estate in the whole. And it is eminently just and equitable that her forty acres should contribute to the fund requisite to discharge it from the burden, or its alternate, to which it was expressly subjected by the will under which it is claimed.

Reversed.