92 Neb. 72 | Neb. | 1912
This is an appeal from a judgment of the district court for Dodge county construing a will and quieting title in Joseph Heywood and Thomas J. Heywood, subject to the life estate of Katherine HeyAvood, in 240 acres of land described as the Avest half of the northwest quarter of section 13, and the south half of the northeast quarter and the east half of the southeast quarter of section 14, all in township 19,. of range 5 east of the sixth principal meridian, in Dodge county. It is claimed by the appellants that the evidence is insufficient to support the decree. It is urged that the 80-acre tract in. section 13 was- not included in the will, and therefore that it descends to the heirs. Omitting the formal part of the will it reads: “First. I order and direct that my executrix, hereinafter named, pay all my just debts and funeral expenses as soon after my decease as conveniently may be. Second. After the payment of such funeral expenses and debts, I give, devise and bequeath my entire estate, both real and personal, to my beloved wife Katherine Heywood, she to have and to hold the same as long as she may live. Third. After the death of my said wife, to be divided as follows, to wit: To my son Jonathan Heywood, the sum of ($100.00) one hundred dollars. To my son Joseph Heywood, the undivided one-half of the 240-aere tract in section 14, township 19, range 5, Dodge Co., Nebraska. To my son Thomas Heywood, the undivided one-half of the 240-acre tract of land in section .14, township 19, range 5, Dodge county, Nebraska. To my son Barney Heywood, the southeast quarter S. E. \ sec. 10, township 19, range 6. To my son Edward HeyAvood, the east half of southwest quarter of section 10, and the east half of the northwest quarter of section 15, all in township 19, range 6, Dodge county, Neb. To my son Nick Heywood, the east half of the northwest quarter section 10, township 19, range 6, and the south half of the southwest quarter of the southwest quarter of section 15, township 18, range 6,
It will be seen that there is no mention in the will of the 80-acre tract of land in section 13 above mentioned. The evidence shows that the testator at the time of making the will was the owner of the 80-acre tract above described, and that it was a part of his farm “in Pleasant, Valley township.” He owned a 240-acre farm in township 19 north of range 5 east, and that was his farm “in Pleasant Valley township.” The two sons, Thomas and Joseph, were in possession of this 240-acre tract and were fanning it together. The three 80-acre tracts joined, and together made the one body of land. The witness who drafted the will testified that lie made a rough draft of the proposed will according to the wishes of the testator, and then from that draft prepared the will itself. This witness testified that the testator- stated to him that he wished to give to his sons, Joseph and Thomas, “the land in Pleasant Valley township.” They were to have 240 acres of land in that township, each to receive an undivided one-half. The record shows that the testator only owned in township 19 of range 5 the 240 acres of land above described. There is uncertainty because the 80-acre tract is omitted from the will. The testator owned only one farm in “Pleasant Valley” township, and that farm was occupied by the two sons mentioned. The parol evidence would seem to remove all uncertainty concerning the intention of the testator. His purpose was to give the two sons mentioned the land in “Pleasant Valley,” 'subject to the rights of the widow, Katherine HeywoOd.
The judgment of the district court for Dodge county is
Affirmed.