194 Iowa 611 | Iowa | 1922
This appeal involves a question of the construction of the will of Jesse Palmer, deceased. The decedent, Palmer, died testate, in December, 1910, leaving surviving him his wife and five children. The will was executed in October, 1904. It gave a life estate in all the testator’s property to the surviving widow. It provided, also, as follows:
“At her [Ellen S. Palmer’s] death I will devise and bequeath all of my said estate to my five now living children or their heirs, if they be dead, but I direct that all my real estate then remaining be sold and converted into money and the proceeds thereof divided equally among my said five children or their heirs but in making such division I will and direct that there be taken into account, the advancements I have made to any of my said children as shown by any promissory note, I hold against any of my said children, whether said promissory note express the intention to treat the same as advancements or not. In case my said wife does not survive me, then 1 direct that my entire estate be divided equally among my children after converting the same into money, and taking into account said advancements and that I hereby will and devise it to them and their heirs on said terms and conditions. ’ ’
In 1894, the decedent had paid a debt for his daughter, Hannah Hammond, and had taken her promissory note for the amount thus expended in her behalf. Such note was as follows:
‘ ‘ One year after date for value received I promise to pay J. Palmer or order the sum of twenty-six hundred and twenty-one dollars and'sixty-four cents; first, at the rate of six per cent per annum until paid $2,621.6.4, this note to be paid out of my share of my father’s estate if not sooner paid, June 16, 1894. Hannah Hammond. ’ ’
In computing the amount of the estate, the executor in-
I. Section 3383 of the Code is as follows:
“Property given by an intestate by way of advancement to an heir, for the purposes of the division and distribution thereof shall be considered part of the estate, and be taken by him toward his share of the estate at what it would be worth if in the condition in which it was given to him, but if such advancement exceeds the amount to which he would be entitled, he cannot be required to refund any portion thereof.”
It is not claimed that this section controls the provisions of the will. Of course, it does not. It does not, by its terms, purport to be applicable to testamentary disposition of property. In the application of this statute, it has always been held that a voluntary conveyance or a gift by a parent to a child should be deemed presumptively an adváneement, to be ultimately charged against the share of the child in the distribution of the parent’s estate, in the event that he died intestate. The statute, when applicable, does not put the parent under disability to make absolute donation to his child; nor does it put the child
By the execution of the promissory note, Hannah became presumptively indebted to her father, according to the terms thereof.
Inasmuch, therefore, as the terms of the note and likewise those of the will are adverse to the objectors, except as to the use of the word “advancements,” and inasmuch as Code Section 3383 and its presumptions have no controlling application to the ease, we would not be justified in finding that the objectors have overcome the presumptions obtaining against them. Much
The computation adopted as against the objectors was the same as that adopted against the other heirs, who have acquiesced therein. We reach the conclusion that the order of the district court should be affirmed.- — Affirmed.